[Senate Hearing 112-951]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 112-951

                    STATUS OF THE DEEPWATER HORIZON
                   NATURAL RESOURCE DAMAGE ASSESSMENT

=======================================================================

                                HEARING

                               before the


                   SUBCOMMITTEE ON WATER AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 28, 2011

                               __________

  Printed for the use of the Committee on Environment and Public Works


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      ONE HUNDRED TWELFTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
FRANK R. LAUTENBERG, New Jersey      JOHN BARRASSO, Wyoming
BENJAMIN L. CARDIN, Maryland         JEFF SESSIONS, Alabama
BERNARD SANDERS, Vermont             MIKE CRAPO, Idaho
SHELDON WHITEHOUSE, Rhode Island     LAMAR ALEXANDER, Tennessee
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
JEFF MERKLEY, Oregon                 JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York
       Bettina Poirier, Majority Staff Director and Chief Counsel
                 Ruth Van Mark, Minority Staff Director
                                 ------                                

                   Subcommittee on Water and Wildlife

                 BENJAMIN L. CARDIN, Maryland, Chairman
MAX BAUCUS, Montana                  JEFF SESSIONS, Alabama, Ranking 
FRANK R. LAUTENBERG, New Jersey          Member
SHELDON WHITEHOUSE, Rhode Island     JOHN BARRASSO, Wyoming
TOM UDALL, New Mexico                DAVID VITTER, Louisiana
KIRSTEN GILLIBRAND, New York         MIKE CRAPO, Idaho
BARBARA BOXER, California, (ex       LAMAR ALEXANDER, Tennessee
    officio)                         JAMES M. INHOFE, Oklahoma, (ex 
                                         officio)




















                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JUNE 28, 2011
                           OPENING STATEMENTS

Cardin, Hon. Benjamin, U.S. Senator from the State of Maryland...     1
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama......     4
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     6
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................    44
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................   136

                               WITNESSES

Dohner, Cynthia, Regional Director, Southeast Region, U.S. Fish 
  and Wildlife Service...........................................     8
    Prepared statement...........................................    11
    Responses to additional questions from:
        Senator Cardin...........................................    17
        Senator Vitter...........................................    21
Penn, Tony, Deputy Chief, Assessment and Restoration Division, 
  Office of Response and Restoration, National Oceanic and 
  Atmospheric Administration, U.S. Department of Commerce........    24
    Prepared statement...........................................    26
    Responses to additional questions from:
        Senator Cardin...........................................    34
        Senator Vitter...........................................    39
Boesch, Donald, Professor of Marine Science and President of the 
  University of Maryland Center for Environmental Science, Member 
  of the National Commission on the BP Deepwater Horizon Oil 
  Spill and Offshore Drilling....................................    49
    Prepared statement...........................................    52
Leinen, Margaret, Vice-Chair, Gulf of Mexico Research Initiative 
  Review Board; Executive Director, Harbor Branch Oceanographic 
  Institute; Associate Provost for Marine and Environmental 
  Initiatives, Florida Atlantic University.......................    58
    Prepared statement...........................................    60
Rifkin, Erik, Interim Executive Director, National Aquarium 
  Conservation Center, National Aquarium.........................    63
    Prepared statement...........................................    65
Graves, Garret, Chair, Coastal Protection and Restoration 
  Authority......................................................    98
    Prepared statement...........................................   101
    Responses to additional questions from:
        Senator Cardin...........................................   109
        Senator Vitter...........................................   112
Shattuck, R. Cooper, Chairman, Executive Committee, NRDA Trustee 
  Council, Legal Adviser to Governor Bentley.....................   119
    Prepared statement...........................................   122

                          ADDITIONAL MATERIAL

Statement of Northwest Florida Tourist Development Council 
  Coalition......................................................   137

 
   STATUS OF THE DEEPWATER HORIZON NATURAL RESOURCE DAMAGE ASSESSMENT

                              ----------                              


                         TUESDAY, JUNE 28, 2011

                                U.S. SENATE
         Committee on Environment and Public Works,
    Subcommittee on Water and Wildlife
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Benjamin Cardin 
(chairman of the subcommittee) presiding.
    Present: Senators Cardin, Sessions, Vitter and Whitehouse.

          OPENING STATEMENT OF HON. BENJAMIN CARDIN, 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. Good morning, everyone.
    The Subcommittee on Water and Wildlife of the Environment 
and Public Works Committee is holding this hearing in order to 
followup on our responsibilities on the oversight of the damage 
caused by the explosion of Deepwater Horizon.
    I want to thank Senator Sessions for his cooperation in 
arranging for this hearing. I think it is an important part of 
our continuing oversight responsibility.
    On April 20th of last year, the offshore drilling rig 
Deepwater Horizon exploded, triggering the largest accidental 
marine oil spill in history. Oil gushed from the well for 87 
days, releasing 4.9 million barrels of oil. That is almost 20 
times the Exxon Valdez oil spill.
    The catastrophe claimed 11 lives and left thousands of 
others in turmoil across Louisiana, Texas, Mississippi, Alabama 
and Florida. The spill has been referred to as the worst 
environmental disaster in the United States. With oil covering 
over 3,000 miles of ocean, impacts on water and wildlife are 
substantial. Oil contamination killed thousands of birds, in 
addition to many mammals and sea turtles. Those who depend on 
the region's natural resources for livelihoods were also 
impacted.
    As Chairman of this Subcommittee I visited the Gulf and saw 
first-hand the devastation and devastating environmental and 
economic impacts of the oil disaster. But what I witnessed was 
the beginning. Long-term impacts on the Gulf waters continue to 
emerge.
    Under Federal law, BP and its partners are liable for the 
catastrophic damages caused by the Deepwater Horizon. While the 
statutory limit for the spill is only $75 million, BP has 
agreed to pay in full and has already committed $1 billion in 
advance for the restoration projects.
    The natural resources damage assessment, NRDA, is the legal 
process by which the Federal and State agencies identify 
impacts on natural resources, how to best restore them, and the 
costs for achieving restoration. Since the NRDA process 
determines the scale and means of restoration efforts, it is 
critical that it is done right.
    The Water and Wildlife Subcommittee has responsibility for 
overseeing the NRDA process to ensure that it is accurate, 
thorough, transparent and fully accounts for the short-and 
long-term effects of the spill. My colleagues and I are 
committed to doing everything we can to right the wrong that 
has happened in the Gulf.
    Last year, we initiated oversight hearing by conducting an 
initial hearing assessing the NRDA process for the Deepwater 
Horizon spill. We listened to experts from the field who 
provided invaluable information about the NRDA efforts. Experts 
shared lessons from the previous spill cleanups, suggesting how 
to maximize process effectiveness and concerns over obstacles 
to a successful assessment.
    But evaluating impact of oil and hazardous substances on 
the Gulf's complex ecosystem is no simple task. The process can 
take years. We come together 1 year later with access to more 
comprehensive information and a better idea of the true impacts 
of this devastating accident from the severe and potentially 
chronic damage to marine life and local fishing economies, to 
the loss of tourism dollars due to damaged coastal environment.
    Today's hearing is intended to ensure that the Deepwater 
Horizon NRDA process is being conducted as accurately and 
thoroughly as possible, and will result in a settlement that 
fully restores the damage that the Gulf region has suffered 
from this devastating spill.
    Specifically, we will be examining where the assessment 
process currently stands and hear about some of the damage 
findings to date, learning how damage assessment is taking into 
account long-term damage effects that may only become evident 
after a financial settlement is reached and understanding 
whether the assessment process is effectively engaging the 
public and providing transparent information to the affected 
communities.
    In the weeks following the spill, the President instituted 
a commission of national experts to study the spill's response 
and to recommend concrete improvements to various government 
responses, including the damage assessment process. That 
commission noted that the Deepwater Horizon spill as a uniquely 
destructive spill of national significance and requires a 
uniquely thorough government response.
    The commission has made numerous recommendations to assure 
the effective and appropriate coordination of the hosts of 
Federal agencies, State governments and others impacted by a 
spill of this magnitude. Specifically, the commission 
recommended the appointment of independent scientific auditors 
to oversee the damage assessment process. They recommended a 
course of transparency and public engagement in the data-
sharing and restoration planning and they have recommended that 
human public health impacts be explicitly included in this 
response.
    So today, we will hear from a series of witnesses, starting 
with our government panel, and then from people from the 
private sector to see how well we are complying with the 
warnings that have been given to us and whether we are using 
best science; whether we have put together the transparency 
necessary to make sure that we have public confidence that we 
are doing what is right; making sure that we not only take care 
of the known damages now, but that we also understand there may 
be further damage that comes to our attention, that the 
restoration plans take that into consideration.
    I want to thank all the witnesses for participating today 
and I look forward to your testimony.
    And with that, let me turn to Senator Sessions.
    [The prepared statement of Senator Cardin follows:]

          Statement of Hon. Benjamin L. Cardin, U.S. Senator 
                       from the State of Maryland

    On April 20th of last year, the offshore drilling rig 
Deepwater Horizon exploded, triggering the largest accidental 
marine oil spill in history. Oil gushed from the well for 87 
days, releasing 4.9 million barrels of oil. That is almost 20 
times the Exxon Valdez oil spill.
    The catastrophe claimed 11 lives and left thousands of 
others in turmoil across Louisiana, Texas, Mississippi, Alabama 
and Florida.
    The spill has been referred to as the ``worst environmental 
disaster the US has faced.'' With oil covering over 3,000 miles 
of oceans, impacts on water and wildlife are substantial.
    Oil contamination killed thousands of birds in addition to 
many mammals and sea turtles. Those who depend on the region's 
natural resources for their livelihoods were also impacted.
    As Chairman of this Subcommittee, I visited the Gulf and 
saw first-hand the devastating environmental and economic 
impacts of this oil disaster. But what I witnessed was only the 
beginning. Long-term impacts on the Gulf waters continue to 
emerge.
    Under Federal Law, BP and its partners are liable for the 
catastrophic damages caused by the Deepwater Horizon spill. 
While the statutory liability cap for the spill is a mere $75 
million, BP has agreed to pay in full, and has already 
committed $1 billion in advance for restoration projects.
    The Natural Resource Damage Assessment is the legal process 
by which Federal and State agencies identify impacts on natural 
resources, how to best restore them, and the costs for 
achieving restoration.
    Since the NRDA process determines the scale and means of 
restoration efforts, it is critical that it is done right. The 
Water and Wildlife Subcommittee has responsibility for 
overseeing the NRDA process to ensure that it is accurate, 
thorough, transparent, and fully accounts for short-and long-
term effects of the spill.
    My colleagues and I are committed to doing everything we 
can to right the wrongs that have happened to the Gulf. Last 
year, we initiated oversight efforts by conducting an initial 
hearing assessing the NRDA process for the Deepwater Horizon 
spill. We listened to experts from the field, who provided 
invaluable information about the NRDA effort. Experts shared 
lessons from previous spill clean-ups, suggestions for how to 
maximize process effectiveness, and concerns over obstacles to 
a successful assessment.
    But evaluating impacts of oil and hazardous substance on 
the Gulf's complex ecosystems is no simple task. The process 
can take years. We come together 1 year later with access to 
more comprehensive information and a better idea of the true 
impacts of this devastating accident, from the severe and 
potentially chronic damage to marine life and local fishing 
economies to the loss of tourism dollars due to damaged coastal 
environments.
    Today's hearing is intended to ensure that the Deepwater 
Horizon NRDA process is being conducted as accurately and 
thoroughly as possible, and that it results in a settlement 
that fully restores the damage that the Gulf region has 
suffered from this devastating spill. Specifically, we will be:

     examining where the assessment process currently stands, 
and hearing about some of the damage findings to date;
     learning how damage assessment is taking into account 
long-term damage effects that may only become evident after a 
financial settlement is reached; and
     understanding whether the assessment process is 
effectively engaging the public and providing transparent 
information to affected communities.

    In the weeks following the spill, the President instituted 
a commission of national experts to study the spill response 
and to recommend concrete improvements to various government 
responses, including the damage assessment process. That 
Commission noted that the Deepwater Horizon spill, as a 
uniquely destructive ``spill of national significance,'' 
requires a uniquely thorough government response.
    The Commission made a number of recommendations to ensure 
the effective and appropriate coordination of the host of 
Federal agencies, State governments, and others impacted by a 
spill of this magnitude. Specifically, the Commission 
recommended the appointment of an independent scientific 
auditor to oversee the damage assessment process. They 
recommended a course of transparency and public engagement in 
the data-sharing and restoration planning. And they recommended 
that human public health impacts be explicitly included in the 
response efforts.
    Today, we will hear from a key architect of those 
recommendations. He will give us his understanding of whether 
and to what extent those recommendations have been implemented 
in the Deepwater Horizon damage assessment, and how what affect 
that might have on the settlement and the ultimate recovery of 
the Gulf region.
    We will use the Commission's recommendations to help us 
evaluate the NRDA process.

     How are the trustees handling the damage assessment of 
this event of ``national significance''?
     Do we need an independent science board in the future for 
spills of national significance?
     Is the current process sufficiently transparent;
     Are public health concerns being incorporated; and
     Is the public being engaged?

    We will also hear from NRDA trustees, from both the Federal 
Government and the states. They will present information about 
the status of the assessment to date, including reporting on 
what initial field data are showing about damage to various 
ecosystems and habitats. They will be able to tell us how the 
NRDA trustees are accounting for long-term damages, which may 
not yet be evident in research studies to date, but which could 
show up in the months and even years to come. They will give us 
a sense of any restoration planning that has taken place to 
date, and whether the public is being effectively engaged in 
the process. They will also be able to give us a sense of how 
the BP's participation in the damage assessment is impacting 
the effectiveness of the research and planning.
    We cannot undo the damage that has been done. But through 
the natural resource damage assessment and subsequent 
restoration efforts, we can employ best practices to minimize 
impacts and ensure an effective, thorough restoration.
    We will do everything in our power to ensure that this 
process is of the highest quality and that it ultimately 
results in a settlement that fully repairs all of the damages 
the Gulf region has suffered due to this tragic spill. I want 
to thank our witnesses for joining us today to assist us in our 
efforts to clean up the Gulf, and to provide hope for people 
living throughout the Gulf region that their environment and 
way of life will soon be restored.

           OPENING STATEMENT OF HON. JEFF SESSIONS, 
             U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Sessions. Thank you, Senator Cardin. I appreciate 
your leadership and efforts to stay on top of the NRDA process. 
I do believe it is important and thank you for doing that.
    I know Senator Vitter, I know how many hours he spent 
working on this bill, as I did, and how it impacted our States. 
And we appreciate you bringing this forward.
    During the last year Deepwater Horizon incident, more than 
200 million gallons of oil spilled into the Gulf, 20-times the 
volume, as you said, Mr. Chairman, of that released during 
Exxon Valdez. Much of that was dispersed through chemical 
dispersants. The Gulf waters are warmer and microbes helped 
remove more than it did in the cold waters of Alaska. But we 
don't know yet the full impact that all of that will have on 
our system environmentally.
    For a season, the incident spoiled miles of beautiful 
beaches along the Gulf Coast, dissuaded tourists from 
frequenting the area, and caused great economic loss to the 
region's seafood industry. Maybe I would show, Mr. Chairman, 
two photographs that give a feel for our area on the Alabama 
Gulf Coast. We were really hammered in the tourist industry. 
Can you hold that up?
    This is the condition of the public beaches where people 
live and go for recreation. They have been cleaned very well. 
BP people are still there. If some oil comes up, they will 
clean it up promptly.
    Now, this chart is at the wildlife refuge area on the 
beach. And under the Fish and Wildlife Service, they are uneasy 
about using equipment to clean it up for environmental reasons. 
It may have to be cleaned by hand. But this is an area that is 
not the public beaches, but it is an area of environmental 
significance. So it shows sort of what it would be like had 
they not been cleaned up. And I do believe that issue has got 
to be confronted. We need to have an effective relationship 
with the Fish and Wildlife people to determine how to clean 
that up.
    So the tourism industry is rebounding, but we need to look 
at the long-range natural resource impact of the spill and the 
losses associated with that impact. The natural resources 
damages assessment NRDA process will play a critical part in 
restoring the Gulf Coast. Federal, State, tribal and local 
governmental stakeholders, the NRDA Trustees, are engaged in 
the assessment of damage to the natural resources, including 
the beaches, fishery, the wildlife, water and other resources. 
And it takes a look at the losses that have occurred.
    In Alabama alone, commercial fishing, seafood processing 
and related industries accounted for some $1 billion in annual 
revenues before the spill. As we know, the spill caused that 
industry to essentially shut down for months. Unfortunately for 
shrimpers, it was in the most critical months of the season, 
May through October; 40 percent of Alabama's waters were closed 
to fishing. Shrimp landings decreased by 50 percent to 60 
percent in 2010 compared to 2009. One recent study found that 
oyster beds would in the Gulf Coast would take up to 10 years 
to recover. That is a significant thing and we would like to 
know more about that and the meaning of that report.
    During the oil spill, around 28,000 sea turtle eggs were 
moved from the turtle nests along the Gulf shores and beaches. 
It may be decades before we know the impact of that. We have 
tried to preserve the turtle population and the people on the 
beach have been doing that for years voluntarily. They watch 
them and protect them in any way possible.
    So we have had a number of problems. The $1 billion that 
has been put forth by BP at this point is a good step, as you 
noted. But the final tally of natural resource damages relating 
to the spill is likely to require billions more.
    So I am glad that we have the representatives of the NRDA 
Trustee Council here with us, including Alabamian Cooper 
Shattuck, and I will more formally introduce him on the second 
panel.
    Thank you, Mr. Chairman. I look forward to hearing the 
testimony.
    Senator Cardin. Thank you, Senator Sessions.
    I had the chance to visit the coast with Senator Vitter, 
and I appreciated his leadership on our Committee in keeping us 
informed as to the conditions in the Gulf.
    Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Mr. Chairman, and thank you for 
that visit and all of your work. And thanks to Senator 
Sessions. We obviously partnered a lot during this tragedy and 
the followup, as well as with our other Gulf colleagues. Thank 
you for this hearing. It is certainly very important.
    I would also like to personally thank Garret Graves. He is 
on the second panel. He is here today as a trustee to 
Louisiana's restoration efforts, a former member of my staff 
and a long-time staffer with the Louisiana delegation, now 
serving as the Chair of the Coastal Protection and Restoration 
Authority of Louisiana.
    As we are all aware, the Deepwater Horizon disaster was a 
grave disaster, starting with the loss of 11 lives, 11 of our 
fellow Americans, hard-working contributing members of society 
who left this world far too soon.
    The incident also resulted in the largest oil spill in 
history, period; an incident that pummeled the Gulf Coast and 
left significant environmental and economic damage, which is an 
ongoing challenge.
    About a year ago, I was able to work with several of my 
colleagues to secure funding for a National Academies of 
Science study to review the best methodology for ascertaining 
the consequences of the BP spill and to make recommendations to 
the Trustees for assessing the entire universe of environmental 
impacts. So I very much look forward to hearing all of the 
panelists' thoughts about this NAS work.
    To say that the work of the NRDA Trustees is important 
would be an enormous understatement, for Louisiana coastal 
restoration has been an ongoing challenge. It will be one 
through my lifetime and beyond my lifetime. Over the last 80 
years, 1,900 square miles of wetlands have been lost through 
coastal erosion. The BP spill exacerbated the habitat 
challenges for our fisheries and wildlife, but it also provides 
a significant opportunity to restore much of the Gulf and make 
critical investment counteracting this very grave trend. And 
the NRDA Trustees are at the forefront of that opportunity.
    Finally, Mr. Chairman, I just want to underscore four key 
points. No. 1, one of the Federal responses to this tragedy by 
the Administration was to issue a moratorium on domestic energy 
production in the Gulf that continues to be a real permitting 
and economic challenge for the Gulf more than a year later. 
Production there will fall well below what it should have been 
over the next year. Unemployment as a direct result of this and 
the Interior Department's mismanagement of permitting is way 
too high.
    It would be a far smarter economic decision, in my mind, to 
rectify these issues to get the Gulf and America back to work, 
rather than, for instance, selling off part of the Strategic 
Petroleum Reserve.
    No. 2, the Interior Department's idle iron guidance may 
well be a step backward for Gulf fisheries habitat, and I think 
we need to look at that carefully. States like Louisiana and 
Texas have been very supportive of strong rigs-to-reefs 
programs, and I believe even California has recently taken 
steps to protect critical marine habitat built through 
artificial reefs around this infrastructure. When we are trying 
to recover the fisheries in the Gulf, I really don't think it 
will be helpful to mandate removing, in many cases, premier 
fish habitats that have become home to a plethora of marine 
wildlife.
    No. 3, we absolutely need to figure out a way to speed up 
this NRDA process. The idea that investment in restoration 
could take upwards of a decade is really unacceptable. We need 
to figure out to get BP to more quickly sign off on assessment 
review and funding. The initial $1 billion that Senator 
Sessions mentioned was a good step, but the continued leverage 
BP has on the process needs further scrutiny. And I would 
suggest we look at my bill that I have joined with others on, 
S. 662, also cosponsored by my Louisiana colleague Mary 
Landrieu, which would require a further significant down 
payment on NRDA liability.
    And fourth and finally, I continue to work closely with all 
of my Gulf colleagues, certainly including Senator Sessions, to 
direct the fines under the Clean Water Act for this disaster to 
the impacted area in the Gulf. It remains appropriate that at 
least 80 percent of those fines levied on BP go toward 
restoring the Gulf and Gulf State economies. And I look forward 
to continuing to work with Chairman Boxer and this Committee in 
particular to move that bill. And I believe a markup is being 
scheduled for the week we return from the July 4th recess.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Senator Vitter follows:]

             Statement of Hon. David Vitter, U.S. Senator 
                      from the State of Louisiana

    Thank you Chairman Boxer and Ranking Member Inhofe for 
holding this hearing today on assessing the status of early 
restoration and the Natural Resources Damages Assessment (NRDA) 
process.
    I would personally like to thank Garret Graves, who is here 
today as a trustee to Louisiana's restoration efforts, a former 
member of my staff, and a long time staffer in the Louisiana 
delegation and now serving as the chair of the Coastal 
Protection and Restoration Authority of Louisiana.
    As we are all aware, the disaster at Deepwater Horizon was 
a grave tragedy that took the lives of 11 of our fellow 
Americans. These were hard working contributing members of our 
society who left this world far too soon.
    The incident also resulted in the largest oil spill in 
history. An incident that pummeled the Gulf Coast and left 
significant environmental and economic damages that remain an 
ongoing challenge.
    Approximately a year ago I was able to work with several of 
my colleagues to secure funding for a National Academies of 
Science (NAS) study to review the best methodologies for 
ascertaining the consequences of the BP spill and to make 
recommendations to the Trustees for assessing the entire 
universe of environmental impacts. I look forward to hearing 
the panel's thoughts on the NAS work.
    To say that the work of the NRDA Trustees is important 
would be a huge understatement. Coastal restoration in 
Louisiana will be an ongoing challenge to extend well beyond my 
lifetime. Over the last 80 years 1900 square miles of wetlands 
have eroded or been lost. The BP spill has exacerbated the 
habitat challenges for our fisheries and wildlife, but also 
provides a significant opportunity to restore much of the Gulf 
and make critical investment in the science necessary to 
protect and strengthen the resiliency of the Gulf Coast. The 
NRDA Trustees are at the forefront of that opportunity.
    Finally, there are four key points I would like to 
highlight:
    1. One of the Federal responses to this tragedy was to 
issue a moratorium on domestic energy production that continues 
to be a permitting and economic challenge for the Gulf region 
even now, more than a year later. Production in the Gulf will 
fall well below what it should over the next year, and 
unemployment as a direct result from Interior Department's 
mismanagement of the permitting process remains too high. It 
would be a far smarter economic decision to rectify the 
permitting process at Interior and get our fellow Americans 
back to work in the Gulf rather than selling oil from the 
Strategic Petroleum Reserve.
    2. The Interior Department's ``Idle Iron'' guidance may 
very well be a step backward for Gulf fisheries habitat. States 
like Louisiana and Texas have been very supportive of strong 
``Rigs to Reefs' programs, and I believe even California has 
recently taken steps to protect the critical marine habitat and 
artificial reefs established by this infrastructure. In fact, 
when we are trying to recover the fishery in the Gulf, I don't 
see how it can be helpful to remove premier fish habitat that 
has become home to a plethora of marine wildlife and even 
threatened and endangered species.
    3. We need to figure out a way to speed the process. The 
idea that investment in restoration could take upwards of a 
decade is unacceptable. We need to figure out how to get BP to 
more quickly sign off on the assessment, review, and funding 
activities. The initial $1 billion was a good first step, but 
the continued leverage BP has in the process needs further 
scrutiny. It may be prudent in the near future to look at 
moving S. 662, legislation written by me and cosponsored by my 
colleague Mary Landrieu, which would require a significant down 
payment on NRDA liabilities.
    4. Finally, I continue to work closely with my Gulf 
colleagues to direct the fines under the Clean Water Act to the 
Gulf States that were impacted. It remains appropriate that at 
least 80 percent of the fines leveled on BP go toward restoring 
the Gulf and Gulf State economies. I will continue to work with 
the Chair and Ranking member of this committee and am committed 
to my Gulf colleagues who have been working diligently together 
on this issue for the last several months.
    Thank you Madame Chair and ranking member Inhofe, and I 
thank our witnesses for their testimony today.

    Senator Cardin. Thank you, Senator Vitter.
    We will now turn to our first panel.
    The agency Trustees play a critical role in this whole 
process, the two Federal agencies plus the States that are 
affected, the States of Louisiana, Mississippi, Alabama, 
Florida and Texas. But the two Federal agencies play a role in 
assessing and developing an action plan to remedy the damage 
that is done, hopefully in conjunction with BP, but ultimately 
decided, if necessary, by the courts.
    So we welcome our two government agency representatives 
that are here. We know that you have been extremely busy on 
this issue since the incident occurred. First, we have Cynthia 
Dohner, the Regional Director of the Southeast Region, U.S. 
Fish and Wildlife, one of the Federal Trustees; and Mr. Tony 
Penn, the Deputy Chief of the Assessment and Restoration 
Division, Office of Response and Restoration, NOAA.
    Welcome. Your full statements will be made part of the 
record and you may proceed as you wish.
    Ms. Dohner.

   STATEMENT OF CYNTHIA DOHNER, REGIONAL DIRECTOR, SOUTHEAST 
             REGION, U.S. FISH AND WILDLIFE SERVICE

    Ms. Dohner. Good morning and thank you, Chairman Cardin and 
Members of the Subcommittee.
    I am Cynthia Dohner, the Regional Director of the U.S. Fish 
and Wildlife Service's Southeast Region. I also serve as the 
Department of Interior's authorized official for the natural 
resource damage assessment and restoration process in the 
Deepwater Horizon oil spill. I appreciate the opportunity to 
appear before the Subcommittee today to testify about Interior 
Department's ongoing work on the assessment and ultimate 
restoration of natural resource damaged in the wake of the 
Deepwater Horizon oil spill over a year ago.
    The magnitude of the Deepwater Horizon oil spill is 
unprecedented in the United States and could result in 
significant injury to the Gulf of Mexico ecosystem and its vast 
and diverse natural resources. The natural resource damage 
assessment and restoration effort as a result of this historic 
oil spill continues to be a high priority effort for the 
department and the service.
    While the response to this historic oil spill continues, 
the Federal agencies and States that make up the NRDA Trustee 
Council are working to complete pre-assessment phase activities 
and have initiated a formal assessment of damages; launched 
work on a programmatic environmental impact statement for 
potential restoration options; undertaken emergency restoration 
projects; and reached an unprecedented agreement with BP that 
makes the $1 billion available for early restoration projects 
to be implemented before ultimate resolution of the claims.
    The NRDA process focuses on identifying injured natural 
resources, determining the extent of the injury, recovering 
damages from those responsible, and planning and carrying out 
natural resource restoration activities that achieve pre-spill 
conditions.
    NRDA also seeks to ensure that responsible parties 
compensate the public for the lost use and enjoyment of those 
resources. The department is working with fellow Trustees and 
independent and responsible party scientists to obtain the best 
available scientific data to support our assessment of 
injuries. Much of the NRDA work currently underway is part of 
the injury assessment and restoration planning phase.
    Although the concept of assessing injuries may sound 
relatively straightforward, understanding complex ecosystems, 
the services these ecosystems provide, and the injuries caused 
by oil and hazardous substance takes time, often years.
    The NRDA process seeks to ensure an objective, 
scientifically rigorous and cost-effective assessment of 
injuries, and that harm to the public's resources is fully 
addressed. Simply put, the objective under the Oil Pollution 
Act is to restore injured natural resources to their pre-spill 
conditions.
    The Trustees issued an notice of intent to conduct 
restoration planning and initiated the formal assessment 
process in October, 2010. However, numerous pre-assessment 
studies involving analysis of baseline and preliminary exposure 
data are still ongoing. Today, formal assessment studies are 
well underway and the department expects that any remaining 
pre-assessment activities will be completed before the end of 
the year.
    Assessment of the injuries resulting from this spill is 
moving forward through both independent studies by the Trustees 
and cooperative studies with BP Currently, more than 80 studies 
are planned. The department is taking the lead on more than 20 
of these studies involving bird species, loggerhead and Kemp's 
Ridley sea turtles, beach mice and aerial imaging.
    So far, 24 private nongovernmental and academic entities 
from several universities are engaged in these studies and the 
assessment work. More than two dozen technical working groups 
comprised of the Trustee agencies are working to determine and 
quantify the impact of the oil spill on multiple public 
resources. The assessment involves looking at those acute 
impacts that we can identify now, and the long-term chronic 
impacts, some of which may not materialize for years to come. 
All this is being coordinated and directed through the Trustee 
Council.
    One of the actions the Trustees have taken to ensure 
enhanced transparency during the NRDA process is the public 
distribution of cooperative assessment work plans and data. 
Trustees are posting study plans on the Internet, providing 
opportunities for public engagement, and conducting frequent 
calls for study planners, scientists and others to assist in 
both developing a broad integrated ecosystem perspective, as 
well as reviewing numerous restoration possibilities.
    We recognize the value of technical expertise and are using 
leading researchers from academic institutions and 
nongovernment organizations to the extent practicable. In 
addition, emergency restoration projects have been initiated to 
avoid or reduce irreversible loss of natural resources and to 
prevent or reduce continuing danger to the resources.
    In April, the Deepwater Horizon oil spill Trustees signed 
an agreement with BP to provide $1 billion toward early 
restoration projects in 2011 and 2012. This agreement does not 
affect the ultimate liability of BP or other entities for 
natural resource damages. The early restoration is taking place 
on parallel tracks with our assessment work.
    We have made a great deal of progress within the NRDA 
framework. This is a complex process involving five States and 
two Federal agencies. The scope and magnitude of the natural 
resource injuries and other impacts resulting from the 
Deepwater Horizon oil spill are extraordinary and still not 
fully known at this time. We are working to finish our pre-
assessment phase, continue assessment activities in 2012, 
prepare for potential litigation, and ensure early restoration 
projects are consistent with long-term restoration planning.
    The department is committed to work with the Trustees to 
fully assess the overall impacts of the spill on the Gulf Coast 
ecosystem and restore the natural resource damage.
    Mr. Chairman and Members of the Subcommittee, thank you for 
the opportunity to testify today. I will be happy to answer any 
questions you may have.
    [The prepared statement of Ms. Dohner follows:]
    
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    Senator Cardin. Thank you very much.
    Mr. Penn.

     STATEMENT OF TONY PENN, DEPUTY CHIEF, ASSESSMENT AND 
   RESTORATION DIVISION, OFFICE OF RESPONSE AND RESTORATION, 
     NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. 
                     DEPARTMENT OF COMMERCE

    Mr. Penn. Thank you, Chairman Cardin, and Members of the 
Subcommittee for the opportunity to testify on the status of 
the ongoing natural resource damage assessment and restoration 
planning for the Deepwater Horizon oil spill.
    My name is Tony Penn. I am the Deputy Chief of the 
Assessment and Restoration Division in NOAA's Office of 
Response and Restoration. I appreciate the opportunity to 
discuss NOAA's role and our work to date on the Deepwater 
Horizon natural resource damage assessment process, also known 
as NRDA.
    NOAA and our co-Trustees have been working tirelessly to 
assess the ecological and human-use impacts of the spill and to 
identify restoration opportunities in the Gulf of Mexico. We 
will continue in our efforts until restoration of the impacts 
is complete.
    My testimony today will discuss NOAA's involvement in the 
damage assessment process, the status of the Deepwater Horizon 
assessment and restoration, and the successes of the Deepwater 
Horizon NRDA.
    NOAA, along with our co-Trustees, is charged with assessing 
and restoring natural resources injured by an oil spill. The 
goal of the assessment process is to determine the type and 
amount of restoration needed to compensate the public for 
injury to the natural resources. The Trustees also assess 
public lost use of those resources such as recreational 
fishing, boating, hunting and swimming. The ultimate goal of 
the NRDA is to implement a package of restoration projects to 
compensate the public for all the ecological and human use 
injuries.
    At the outset of the Deepwater Horizon spill, NOAA quickly 
mobilized staff to begin coordinating with Federal and State 
co-Trustees and the responsible parties to collect data that 
are critical to inform the NRDA. The Trustees focused on 
assessing the injuries to all ecosystem resources from the deep 
ocean to the coastlines of the Gulf of Mexico. Information 
continues to be collected to assess potential impacts to fish, 
shellfish, terrestrial and marine mammals, turtles, birds and 
other sensitive resources, as well as their habitat, including 
wetlands, beaches, mud flats, bottom sediments, corals and the 
water column. Lost human use of these resources such as 
recreational fishing and beach use are also being assessed.
    Technical teams consisting of scientists and State and 
Federal agencies, academic institutions, and BP have been in 
the field conducting daily surveys and collecting samples for 
multiple resources, habitats and services. To date, several 
hundred scientists, economists and restoration specialists have 
been and continue to be involved in our NRDA activities.
    Through the size of the Deepwater Horizon release and the 
potential for injury, NRDA field efforts have far surpassed any 
other for a single oil release. As of early June, the Trustees 
had approved over 115 study plans and collected more than 
36,000 water, tissue, sediment, soil, tar ball and oil samples. 
More than 90 oceanic cruises have been conducted since early 
May, 2010, and many more are scheduled for the summer and fall 
of 2011.
    From these sample collection efforts, more than 21,000 
laboratory analyses have been completed. Of those, more than 
20,000 have been validated through a rigorous quality assurance 
process. Once these data clear the validation process, they are 
then made publicly available, which is a new milestone in NRDA 
transparency.
    Concurrent with the injury assessment, NOAA and the co-
Trustees are planning for and implementing restoration. To 
date, the Trustees and BP have agreed to implement several 
emergency restoration projects designed to curtail further 
injury to natural resources. Trustees are also preparing an 
environmental impact statement which will identify a range of 
restoration alternatives that the Trustees will consider to 
compensate the public for lost natural resources and services.
    On April 21st of this year, the Trustees announced an 
agreement whereby BP agreed to fund $1 billion in early 
restoration projects. Public input on early restoration 
projects has already begun and will continue through the 
summer.
    To meet the requests from academia, NGO's and the general 
public regarding data and ongoing NRDA actions, NOAA and the 
co-Trustees have developed data-sharing and other outreach 
practices that have resulted in one of the most transparent 
damage assessments i history. One of the key actions the 
Trustees have taken is the public distribution of cooperative 
assessment work plans and data during the NRDA process.
    NOAA has continued to update its publicly accessible Gulf 
environmental response management application website, allowing 
users to observe data via an interactive map. Along with 
providing an unprecedented amount of data during the NRDA, NOAA 
and the other trustees have sustained efforts to educate and 
communicate with the public.
    Since the beginning of the spill, the Trustees have 
conducted numerous roundtable discussions with stakeholder 
groups and have facilitated stakeholder field trips where NRDA 
actions were discussed and observed. As part of the 
programmatic environmental impact statement process to solicit 
restoration project ideas, 11 public meetings were held across 
the Gulf Coast States and in Washington, DC.
    The task of quantifying the environmental impact of the 
spill is no small feat, but I would like to assure you that we 
will not relent in our effort to protect the livelihood of the 
Gulf Coast residents and mitigate the environmental impacts of 
this spill.
    Thank you for allowing me to testify on NOAA's damage 
assessment efforts, and I am happy to try and address any 
questions that you may have.
    [The prepared statement of Mr. Penn follows:]
    
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    Senator Cardin. Let me thank both of you for your 
testimony. We really appreciate it. Clearly, we want to make 
sure you get this right. So our first objective is to make sure 
that we have the best scientific assistance, that we do the 
assessment accurately, so that the restoration plan is 
effective in restoring to the best that we can the 
environmental damage that has been done, and that it is 
implemented in an accountable way. So we want to make sure it 
is done right.
    But we also need to have some understanding of where we are 
in the process and how long you believe that process will take. 
We understand that a lot depends on the cooperation between BP 
and the Trustees. If things go into courts in a contested way, 
it can take a longer period of time. But give us some 
estimation as to where we are in the process and when you 
believe we will be able to look forward to an implementation 
agreement.
    Mr. Penn. So, where we are in the process, as Cindy 
mentioned, we are in the restoration planning phase under OPA, 
which includes actual injury assessment. We are in the process 
of quantifying injuries to the resources and services.
    At the same time, we are undertaking restoration planning. 
So we are looking ahead to what can we do to restore those 
resources that we are finding have been impacted.
    Specifically with respect to the injury assessment process, 
we have come a long ways to identifying exposure to the 
resources in the Gulf. I don't know if you saw on the map, 
whether they be turtles, marine mammals, fish resources, 
shoreline habitat, oyster reefs. We have documented that there 
has been exposure to these resources. We are in the process of 
now moving from, OK, yes, there has been exposure, but under 
OPA we have to go to the next step of what are the injuries, 
what has been caused by the oil spill that we can quantify that 
then we try and restore.
    So we are in the middle of that injury causality process. 
And again, at the same time, looking forward to what can we do 
for restoration of those resources.
    Senator Cardin. Is there a guesstimate as to how much 
longer that process will take?
    Ms. Dohner. May I just add one thing to what Tony said as 
far as the assessment as we go forward? We are also looking at 
the assessment of the chronic, the long-term impacts and how we 
go forward. And as we go forward, each year gives us new 
information. And overall, trying to make sure that we 
accurately count the acutely injured species. Obviously, the 
more information, the more time we have, the better it would be 
as we go forward.
    Senator Cardin. And I am not trying to rush the process. I 
am just trying to get your game plan now as to when you believe 
you would complete that phase.
    Mr. Penn. So, from our perspective, as you probably now, 
DOJ filed suit in this case that included natural resource 
damages in December of last year. And so we don't know what 
that will mean for the court schedule, but we have to be 
prepared when the judge comes around looking at NRDA. So we are 
looking at completing another year of field work this year and 
looking again next year, and then perhaps having to be ready 
for a court schedule.
    So in the next couple of years, we are going to have to 
have pretty good information on what we have found and where we 
are.
    Senator Cardin. Which leads me to the early restoration 
funding, the $1 billion in April, and that was certainly good 
news and I applaud you and BP for releasing the funds so that 
restoration work can begin.
    But it seems to me $1 billion is a relatively small amount 
considering the amount of restoration that will be required and 
that early restoration is important. Can we look forward to 
additional sums being released before a full settlement is 
reached so that the States have additional resources to move 
forward?
    Ms. Dohner. I think that is unknown at this time, but 
whether or not we go forward, we need to deal with the $1 
billion that we have go forward with the early restoration 
projects that we can do with that $1 billion as we are going 
along on a parallel path with the assessment and quantifying 
the injury and making sure that we identify uncertainties.
    If we do work on a timeline similar to what Tony was 
talking about, we need to make sure we also address the long-
term, again, chronic damages that we are unsure of as we go 
forward.
    Senator Cardin. Well, I appreciate your keeping us 
informed, because we do hear from the States and I am sure we 
are going to hear more from them today that they are strapped 
on resources and that the moneys that are being made available 
are being put to good use. It would be I think an encouraging 
sign if we could get additional commitments for restoration at 
this stage. So if you will work with us on that.
    I have one more question I want to ask before turning to 
Senator Sessions, and that is this process builds upon the 
cooperative relationship between BP and the Trustees which we 
know could turn adversarial. It is the nature of the process. 
You have to be realistic. We would like to see an agreement. We 
may not have an agreement.
    Therefore, it is very important that we have an independent 
scientific base for what we are doing. During Exxon Valdez, the 
NRDA process set up their own council, their own side group of 
independent experts. Do you have such a process available to 
you in the BP circumstance? Do you have an independent panel 
that you rely upon? I know you said you seek independent 
verification, but is there a panel that has been put together 
similar to Exxon Valdez?
    Ms. Dohner. There is not a panel that is put together at 
this time. We do have the technical expertise on the technical 
working groups and we pull from academia in the States and the 
Federal agencies as needed, and a long list. The responsible 
parties are part of that technical working group.
    So we do have experts in the field as we design these 
studies for the long-term restoration, the restoration 
projects.
    Senator Cardin. Did you consider putting together a panel 
similar to Exxon Valdez?
    Mr. Penn. We have heard that feedback and that input from 
some of our NGO partners. I think if memory serves me right, in 
Exxon Valdez that group was I believe set up after there was 
settlement to look at how moneys were being spent post-
settlement. As Cindy said, in this case we are pre-settlement. 
We do have a lot of technical expertise within these working 
groups. NOAA alone is working with 75-some academics, along 
with their support staff. And we feel like we have really got 
strong technical expertise within our working groups and that 
we can speak candidly with some of the experts that we are 
working with who we have under confidentiality agreements.
    Senator Cardin. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you very much.
    Ms. Dohner, tell us who is in charge of the NRDA process? 
In other words, who invokes the meetings and sets the schedules 
and makes decisions under this statute, as you understand it?
    Ms. Dohner. There are seven different individual Trustees 
that are part of this. At this time, there is a new structure 
that has been put in place with an Executive Committee that is 
helping guide this process.
    This process was started at the very, very beginning of the 
spill as we were pulled together and has met routinely and 
regularly across the board as we go forward with the technical 
working groups and working together as a Trustee Council. But 
within that Trustee Council, as we go forward on different 
things, we have equal votes as we go forward.
    Senator Sessions. Is the Secretary of Interior coordinating 
and calling the group into session?
    Ms. Dohner. Right now, as part of the Executive Committee, 
Cooper Shattuck is actually the Chair of that committee and 
Cooper is the lead for helping us put together these meetings. 
The Trustee Council actually has, as I said, routine meetings 
that are scheduled. And with the early restoration, at the last 
meeting we had we scheduled an additional one so we could go 
forward and work on this early restoration, the project 
proposal and the process we have to go through to get them 
approved.
    Senator Sessions. So if you don't report on time, it would 
be Cooper's fault. Right?
    [Laughter.]
    Ms. Dohner. No, sir. As I said, the Trustees have to work 
together.
    Senator Sessions. Well, you do. And I hear good things 
about the openness with which you are doing the process, but I 
did note Mr. Penn previously stated he doubts the NRDA process 
will have moved from the planning stage to the implementation 
stage by year's end. That may be more likely by the end of 
2012. It is a big system.
    So I think we share the interest, Senator Vitter and the 
Chairman did, that we don't want this to take too long. 
Somebody needs to make sure that this moves forward.
    Would you comment on that, Mr. Penn?
    Mr. Penn. Yes, and I think that the Trustee Council that 
has come in with Cooper's leadership has been a shot in the arm 
to get the Trustees organized and has focused on some of the 
decisions at hand.
    I don't want to suggest that we just sort of slowly moving 
through the assessment process. I think one of the real 
accomplishments so far to date here is the $1 billion of early 
restoration and the new council that has been formed is really 
focused on identifying projects and looking at how we get to 
agreement to get those projects implemented. And I think we 
will see restoration in this case long before we would in most 
other damage assessment cases because of their leadership and 
the focus on getting things in the ground very soon.
    Senator Sessions. Ms. Dohner, I may have been unfair when I 
said that some of this cleanup hadn't been done by the concerns 
of Fish and Wildlife. That was sort of the feedback I had 
gotten.
    Are you aware of whether the Fish and Wildlife Service has 
directed any cleanup efforts to stop as a result of 
environmental concerns?
    Ms. Dohner. Sir, I was actually down at Bon Secour at that 
refuge just earlier this month and there are cleanups going on 
right now. There are times that they have asked the cleanup to 
stop if there are birds that are nesting, things like that, 
natural resources that we would want to protect on the refuge. 
But there is a current active cleanup operation going on right 
now.
    Senator Sessions. Well, there is a danger of spreading and 
washing also in high tides and storms. I think it is not 
healthy for the environment for it to stay there. So I guess 
either by hand or by machinery, I would suggest we might as 
well get on the work in accomplishing that.
    The other parts, the beaches are fabulously clean and 
getting really good reports this year, so we are pleased about 
that.
    Do you talk, Ms. Dohner, with local officials along the 
Gulf Coast, I will ask both of you, concerning their concerns 
about how progress is occurring?
    Ms. Dohner. Sir, I haven't myself talked with the local 
folks, but we have managers that are on the ground and we have 
people that are stationed at the incident command that are 
talking with the local folks and working with them on their 
concerns on how we go forward with the cleanup at the refuge.
    Senator Sessions. Mr. Penn, when do you expect that NOAA 
will transition from the assessment and planning phase to the 
restoration and implementation phrase?
    Mr. Penn. Sir, with the early restoration, so right now we 
have things going on concurrently. We are doing the assessment 
and we are doing restoration planning, and restoration 
implementation. We have actually done some emergency 
restoration action to prevent further injury to resources. And 
with early restoration, we are looking to implement some of 
those types of projects here in late 2011 into 2012.
    Senator Sessions. Just briefly, there are some concerns 
that have been expressed to me by people that I respect that 
live in the area that there may be some hesitation to proceed 
with the NRDA process while the initial response process is 
still ongoing, that BP as the responsible party is responsible 
for.
    Have you heard, is there any legal concern that they might 
say, well, you need to certify that we have finished our 
initial response effort before we go any further with the NRDA 
process?
    Mr. Penn. No, sir. We have moved forward with our damage 
assessment at the same time the response started. We are 
learning from the response. We are getting information that is 
informing the damage assessment. But we are not delayed at all 
by the response action.
    Senator Sessions. Good. Thank you.
    Senator Cardin. Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman.
    First of all, let me welcome Ms. Dohner here. We just had 
over the weekend the 50th anniversary of the University of 
Rhode Island Graduate School of Oceanography. And I believe you 
got your master's degree from GSO.
    Ms. Dohner. Yes, sir.
    Senator Whitehouse. We are very pleased to actually have 
another GSO person on the following panel, so I am glad to see 
the University of Rhode Island Graduate School of Oceanography 
so well represented in this hearing.
    Mr. Penn, the natural resource damage assessment, as I 
understand it, stands on a considerable number of study plans 
that are approved, that identify various problems and explore 
them. As I understand it, there have been well over 100 
approved already. And I understand that the relationship is 
that the Trustees and BP negotiate to try to define the study 
plans correctly.
    What is your sense of how that process has been going? Have 
there ever been deadlocks? What happens when there are 
deadlocks? I understand that BP is paying for all of this as it 
goes, so they have slightly different interests at stake than 
you. And I am interested in how that works itself out through 
this process.
    Mr. Penn. Yes, sir. I think the process is going fairly 
well. We have our disagreements on what we would like to see in 
study plans. There is kind of the push and the pull that we 
have between the Trustees and BP
    But ultimately, the decision is the Trustees' on what to 
implement, and what we feel we need to do is to make a 
defensible damage assessment case. So in the instances where we 
cannot reach agreement and we can't get signature on these 
plans and BP agree to up front the cost of those studies, we 
would take those studies on our own and implement those studies 
if we felt that they were necessary to meet our needs of the 
case.
    Senator Whitehouse. Without BP paying for it at that point 
since they are not agreed. What sources of funding do you have? 
Do you feel that is a restriction on your ability to proceed 
with any of the studies?
    Mr. Penn. I do not feel that it is a restriction. We have 
been able to up front costs. And in fact, when BP commits, they 
sign that they are going to fund these studies. They don't 
actually fund those real-time. We incur the costs and then we 
recover those costs later.
    But any study that we do, the Trustees feel those are 
reasonable assessment costs that we will recover eventually, if 
not by a written signature saying they agree up front, those 
are legitimate costs that we will recover later.
    Senator Whitehouse. And you have an account that allows you 
to pay the scientists and the folks who are doing the work in 
the meantime so that they are not carrying the cost of the 
government study?
    Mr. Penn. Yes, sir.
    Senator Whitehouse. And you are comfortable that works 
smoothly, that there is plenty available that is not an issue? 
Because that creates no hesitancy on the part of NOAA with 
respect to proceeding with studies?
    Mr. Penn. That is correct.
    Senator Whitehouse. OK. Good. Good to hear.
    Thank you, Chairman.
    Senator Cardin. Senator Vitter.
    Senator Vitter. Thank you, Mr. Chairman.
    And thank you both for your work.
    Ms. Dohner, can you briefly discuss efforts that have been 
undertaken to rehabilitate seafood and in particular the oyster 
habitat over the last few months?
    Ms. Dohner. Sir, I do know that they are doing work to 
evaluate the oyster and the oyster habitat. But as far as the 
seafood, I would have to get back to you on that.
    Senator Vitter. And what broadly is being done on the 
oyster side?
    Ms. Dohner. I know that they have looked at what needs to 
be done for restoration and those are some of the early 
restoration projects that have been evaluated; and also some of 
the work that has been done under the technical working groups 
on the impacts. But again, I would get back to you with a 
better explanation.
    Senator Vitter. OK, great. If you could do that followup, 
that would be super.
    In your testimony, you State that the NRDA process allows 
implementation of emergency restoration projects before the 
whole assessment is complete. What are the limits on this 
authority and what is the potential to expand and expedite that 
authority so we are not backloading everything for 8 years from 
now?
    Ms. Dohner. The emergency projects are designed to go 
forward and minimize the injury so that the long-term injury 
would be less than what is anticipated. Some of the things that 
we have done is shoreline vegetation and going forward with the 
shoreline vegetation, or improving habitat that would allow 
waterfowl to land in areas that are not oiled, things like 
that.
    The other process that we have, the early restoration, 
would be the overall restoration. So emergency projects are a 
little bit different than the early restoration projects as we 
go forward.
    Senator Vitter. OK. And Ms. Dohner, if you could briefly 
discuss both Federal and State rigs-to-reefs programs and their 
significance for our fisheries habitat?
    Ms. Dohner. Sir, I am sorry. I am not familiar with that 
project, so I would have to get back to you.
    Senator Vitter. OK.
    Mr. Penn, one of the frustrations I hear all the time from 
the fishing community, both recreational and commercial, are 
challenges with adequate stock assessment and science at NOAA. 
This pre-dates BP This is a general frustration. Given that 
there are clear shortcomings in NOAA's stock assessments, how 
is that complicating your efforts in this context?
    Mr. Penn. Sir, we are looking at impacts to fisheries 
resources from both a recreational use perspective, as well as 
ecological perspective. I am not an expert in this area. I 
don't know to what extent we have relied on stock assessments 
to do that work. I don't think it has come into play for the 
recreational assessment.
    On the ecological side, certainly we need to know the 
resources that are out there, the types, what might have been 
impacted by the spill. We are working through some of those 
issues. How do we determine baseline? What is potentially 
impacted?
    Senator Vitter. I guess that is my question in all of this, 
and I don't mean to interrupt, but to get to the heart of it, 
you need some baseline. Ordinarily, a logical baseline to go to 
would be NOAA stock assessments. I think it is universally 
recognized those are not current, up to date, precise, adequate 
in any way.
    So how do you determine a baseline?
    Mr. Penn. Yes, that is a very good question and we could 
always use better baseline information across our resources 
that we are looking at. In this case, what we are able to do is 
a number of things. We are doing some trials now to determine 
what is there.
    It is not ideal. We would have liked to have been out there 
before. But we can also then simulate what creatures would have 
been exposed to oil at different concentrations and look at 
potential impacts to those species. And then think about how 
that applies to the larger system that was impacted.
    Senator Vitter. Is any of that work being done in this 
context helpful in terms of the broader NOAA stock assessment 
responsibility? Because again, I think it is broadly recognized 
that NOAA is way behind on that. We don't have good current 
stock assessment information.
    Mr. Penn. Yes, that is a good point. And we are 
coordinating with other NOAA programs that don't typically do 
damage assessment work, but that have other monitoring 
requirements and responsibilities. We have supplemented what 
they have done and then we have enhanced what they have done so 
that they can use some of that information going forward.
    The specifics for stock assessments, I would have to get 
back to you on how what we are doing is feeding into that 
process.
    Senator Vitter. OK.
    Thank you, Mr. Chairman.
    Senator Cardin. I want to underscore the point that Senator 
Vitter made about the baseline assessments. On our second 
panel, there will be testimony of concerns about whether we 
have an accurate baseline. I think some of the points that 
Senator Vitter raised is very much important to be addressed.
    So I would just urge you to use as wide a range of 
scientific opportunities that we have in order to try to have 
an accurate baseline to assess damages. I think we could do a 
stronger job there.
    And second, and I think Ms. Dohner you mentioned this 
specifically, that by having another season, you will get more 
information and you will have more confidence in the 
restoration plan. We are concerned about the long-term impact, 
what might be discovered after the settlement is reached; after 
the court decisions are finished; after the implementation 
plans have already started to be implemented.
    And I believe I heard from your prior comments that in the 
assessment and implementation plans, you attempt to deal with 
those issues the best that you can. Would you spend a minute 
giving us a little bit more confidence that the unknown that 
may develop later, that there will be adequate protection in 
the negotiations?
    Ms. Dohner. Sir, as part of the assessment studies as we go 
forward in trying to assess the long-term chronic impacts, we 
are also going to have to have long-term monitoring 
incorporated into these studies and also incorporated into the 
restoration planning, and overall to make sure that we are able 
to, with performance measures within these monitoring plans, 
identify any types of impacts that we might not see for years 
from now.
    Sea turtles, for example, we might not see impacts years 
from now, so we need to make sure that is part of the overall 
process as we go forward.
    Senator Cardin. So we would be protected to make sure that 
even those discovered later, it is still part of the plan?
    Ms. Dohner. Yes, sir.
    Senator Cardin. Thank you.
    Any other questions? Senator Sessions.
    Senator Sessions. Briefly, we have had reports concerning 
the oyster situation. Also, some reports have indicated that 
red snapper stocks are showing more lesions when they have been 
caught than have been otherwise observed. Some have said it is 
not unusual. Those are the kind of things we definitely need to 
get to the bottom of.
    Mr. Penn, is that under your review? And do you have any 
comment on that?
    Mr. Penn. Yes, sir. We are looking at the red snapper and 
we have heard reports of lesions. I know there is a researcher 
at LSU that has indicated findings of more widespread lesions 
than might otherwise be expected. So we are looking into that 
and are developing some study plans that would look at that 
specifically.
    Senator Sessions. How long does it take to get that plan 
developed and executed?
    Mr. Penn. We can develop plans in a matter of days to 
weeks. I don't know exactly what the status is of that 
particular plan. I know it has been under discussion and we 
have been looking at the data that is coming from LSU. And some 
of our data that we have collected through some of our trawls, 
but not necessarily tied to a particular study plan. So we are 
actively working on that issue.
    Senator Sessions. Well, we thank you for your attention to 
this matter. I do think it provides a historic opportunity to 
develop a new baseline, to look at some new research, and to 
identify ways not only to recover from the damage that has been 
sustained, but also perhaps to manage our stocks and our 
wildlife better and to make it more healthy.
    So thank you very much.
    Senator Cardin. Let me thank both of you again for not just 
your testimony, but your commitment to this issue. This is the 
second hearing that this Committee has had on the subject. It 
will not be our last as we will assist and followup on 
oversight as to how the process moves forward.
    So thank you very much for your testimony.
    Mr. Penn. Thank you.
    Ms. Dohner. Thank you.
    Senator Cardin. We will now turn to our second panel. And 
as they come up, let me yield to Senator Sessions and Senator 
Vitter for an introduction before introducing the rest of the 
panel.
    Senator Sessions. Mr. Chairman, while the panel is coming 
forward, it is my pleasure to introduce a fellow member of the 
Alabama Bar, Mr. Cooper Shattuck. Mr. Shattuck currently serves 
as Legal Advisor to Governor Robert Bentley of Alabama. In that 
capacity, he was selected to serve as Chairman of the Executive 
Committee of the NRDA Trustee Council. So we get to hold him 
responsible for everything, I suppose.
    But actually, I am a little concerned that I don't think 
any of our leaders have a lot of executive power. They just 
have collegial power in this process.
    Prior to joining the Bentley Administration, Cooper was a 
practicing attorney with the firm of Rosen Harwood in 
Tuscaloosa, a good law firm. In addition, he served as Adjunct 
Professor of Law at the University of Alabama School of Law, 
one of the top law schools in America, I am proud to say.
    He is a Bar Commissioner for the Sixth Circuit, which was 
elected by his fellow bar members. He is currently a member of 
the Alabama State Bar Foundation Board of Trustees; a member of 
the Tuscaloosa Bar where he served as President previously. A 
bachelor's degree in economics he has from Georgia Tech and a 
juris doctorate from Alabama.
    He and his wife Christine live in Tuscaloosa. They have 
four daughters. He had been an Associate Pastor at First United 
Methodist Church there.
    And thank you for coming. And I also note his mother is a 
good citizen, former citizen of my hometown of Camden, Alabama, 
a little community, and they are a great family, and I am proud 
of Cooper to be serving on this important position with 
Governor Bentley.
    Senator Cardin. Mr. Shattuck, welcome.
    Senator Vitter.
    Senator Vitter. Thank you, Mr. Chairman.
    As I mentioned, Garret Graves is here today as a Louisiana 
Trustee, and he also serves as the Chair of the Coastal 
Protection and Restoration Authority of Louisiana. That is a 
State cabinet-level position over all of coastal restoration 
and protection.
    Before that, I was honored to have him on my staff serving 
with me, and he served many Members of Louisiana's 
congressional delegation over several years. He was intimately 
involved in virtually every WRDA, water resources, coastal 
restoration-related bill going through this process while he 
was up here; very, very able. And I know Louisiana's interests 
are in very good hands.
    Senator Cardin. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. I just want to recognize Dean Leinen, 
this is, as I said earlier, a banner day for the URI Graduate 
School of Oceanography, with both a graduate in the first panel 
and a former Dean on this panel. Dean Leinen was kind enough to 
return to the Graduate School of Oceanography for the 50th 
anniversary celebration, and if my timing is right, I think she 
was actually Dean of the graduate school at the time my wife 
got her Ph.D. in marine science from the graduate school.
    So in any event, she was a good friend her years a Dean in 
Rhode Island and I am delighted to have her here. 
Unfortunately, we have lost her to Florida in the meantime, but 
there is always hope.
    [Laughter.]
    Senator Cardin. And Dr. Boesch could have been introduced 
also by Senator Vitter since he is a native of Louisiana, but 
now he is a Marylander, so I will take the honor of introducing 
Dr. Boesch.
    He has been a strong advocate for us in Maryland, part of 
the University of Maryland Center for Environmental Science. He 
has been a personal adviser to me on many of the environmental 
issues. And he comes to us as a member of President Obama's Oil 
Spill Commission.
    Dr. Boesch examined the causes of the Deepwater Horizon 
explosion and recommended improvements to Federal laws, 
regulations and industry practices to both prevent and mitigate 
future spills. He has a strong background in biological and 
ocean issues, and it is a pleasure to have you once again back 
before our Committee.
    And we have another Marylander, Dr. Eric Rifkin, who comes 
to us through the National Aquarium in Baltimore. Dr. Rifkin is 
the interim Executive Director of the National Aquarium 
Conservation Center, which partnered with Mote Marine 
Laboratories in Florida and Johns Hopkins University to study 
new technologies for measuring low levels of oil spill 
contaminants.
    I think this is cutting-edge information that helps us 
better assess the amount of damage that has actually been done. 
He has been able to actually develop techniques that are more 
sophisticated in determining areas that we thought were not 
affected, which in fact were affected by the BP oil spill.
    So Dr. Rifkin, it is also a pleasure to have you here, and 
also another Marylander on the panel.
    We will start with Dr. Boesch and work our way down.

  STATEMENT OF DONALD BOESCH, PROFESSOR OF MARINE SCIENCE AND 
      PRESIDENT OF THE UNIVERSITY OF MARYLAND CENTER FOR 
ENVIRONMENTAL SCIENCE, MEMBER OF THE NATIONAL COMMISSION ON THE 
      BP DEEPWATER HORIZON OIL SPILL AND OFFSHORE DRILLING

    Mr. Boesch. Thank you, Senator Cardin.
    Senators, I am very appreciative of the opportunity to 
testify today. I ask that revised testimony just changed to 
include more specific references and sources be included in the 
record.
    Senator Cardin. It will be. And all of your statements will 
be included in the record.
    You may proceed as you wish. Thanks.
    Mr. Boesch. I was very actively engaged in scientific 
research on the long-term environmental issues in the Gulf of 
Mexico and the impacts of offshore oil and gas development 
before leaving Louisiana 21 years ago to, as Senator Cardin 
indicated, head the University of Maryland's Center for 
Environmental Science.
    I suspect it was for this reason, my familiarity with the 
issues surrounding the oil spill that the President appointed 
me to serve as one of seven members of the National Commission 
on the BP Deepwater Horizon Oil Spill and Offshore Drilling.
    So my perspectives are really those of the commission that 
I will present today.
    The natural resources damage assessment was not central to 
our investigation, and in any case, was still in a very early 
stage as we completed our report in January. Nonetheless, the 
commission's report does discuss and offers some 
recommendations concerning the ongoing NRDA.
    The goal of NRDA is to make the environment and public 
whole for injuries to natural resources resulting from this oil 
spill. These injuries are quantified by reference to conditions 
that would have existed had the incident not occurred. Now, we 
recognized on the commission that establishing such baseline 
conditions is challenging, not only because of the paucity of 
background data and natural variability, but because many Gulf 
Coast habitats have been substantially degraded over decades 
from pressure from industrial, agricultural, commercial and 
residential development.
    To illustrate this long-term degradation, I included in my 
written testimony a simple graph that shows the rate of wetland 
loss in Louisiana and how it spiked during the 1970's when we 
had a very aggressive program of dredging canals and wetlands 
for oil and gas exploitation, as well as transportation.
    The Oil Spill Commission recommended that the Trustees 
ensure compensatory restoration under NRDA process is 
transparent, appropriate, and to the degree possible, 
apolitical by, one, as Senator Cardin mentioned in his 
introduction, an appointed independent scientific auditor to 
ensure that projects are authorized on the basis of the ability 
to mitigate actual damages caused by the spill; second, that 
any potential settlement agreement provided for long-term 
monitoring and assessment of the affected resources for a 
period of at least 3 years; and for enhancement of the damages 
beyond the baseline.
    And third, hewing as closely as possible to the in-place/
in-kind principles that underpin NRDA regulations to ensure 
that the injured public resources are made whole to the fullest 
extent possible regardless of State or Federal boundaries.
    The recent agreement to support early restoration presents 
a promising opportunity to begin to restore impacted resources 
without waiting years for full compensation of the NRDA, when 
damage restoration may prove less effective. However, it also 
presents opportunities for misallocation of these resources. 
From the beginning, it allocates early restoration funding 
equally among the States and Federal Trustees despite the fact 
that there are disparities among these natural resource 
damages.
    This potentially, if this principle continues, could 
compromise the in-place/in-kind principle in a way that 
concerned the commission.
    The framework agreement also states that early restoration 
projects must be consistent with the Oil Pollution Act in 
meeting criteria for making the public whole for injuries from 
the oil spill. To avoid politically expedient approaches that 
might miss the mark in terms of compensatory restoration, 
appointing an independent scientific auditor to a review board 
to ensure that projects are authorized on their basis to 
mitigate actual damages caused by the spill to the degree 
possible would be prudent.
    A scientific audit could also independently evaluate the 
degree to which the natural resource damage offsets to be 
credited against the damages due to the responsible party for 
these projects are measured, calculated and documented using 
the best available science.
    The impacts of the Deepwater Horizon oil spill come, as I 
mentioned, on top of longer-term degradation of important 
habitats and resources of the Northern Gulf of Mexico, 
including loss of coastal wetlands that Senator Vitter 
mentioned, recurrent hypoxia, the so-called dead zone, over-
fished populations and endangered species.
    The Oil Spill Commission identified that a restoration 
effort that is well funded, scientifically grounded and 
responsive to regional needs and public input would be very 
consistent with the recommendations that Secretary of the Navy 
Ray Mabus made earlier last year. The commission recommended 
that Congress dedicate for this purpose 80 percent of the Clean 
Water Act penalties, as Senator Vitter mentioned earlier in his 
discussion of legislation. A Gulf Ecosystem Restoration Task 
Force chaired by EPA Administrator Lisa Jackson and co-chaired 
by Mr. Graves is developing a Gulf of Mexico ecosystem 
restoration strategy, which is due in October 2011.
    Legislation to dedicate the funds and establish a council 
to administer them has seemed, to me at least, stalled in 
Congress, in part because of a lack of consensus among the Gulf 
States over the scope and permissible uses of the funds and, 
once again, allocation among the States. Senator Vitter's 
announcement that a markup will take place is a hopeful sign 
that we may see some progress on that.
    The Oil Spill Commission in looking at this issue concluded 
that it was most compelling from a national perspective if the 
application of these funds focused on ecosystem restoration, 
and we argued that the criteria should be national 
significance, contribution to achieving ecosystem resilience, 
and the extent to which national policies such as flood 
control, oil and gas development, agriculture, navigation 
directly contributed to the environmental problems that require 
the restoration.
    So thank you very much.
    [The prepared statement of Mr. Boesch follows:]
    
    
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    Senator Cardin. Thank you, Dr. Boesch.
    Dr. Leinen.

   STATEMENT OF MARGARET LEINEN, VICE-CHAIR, GULF OF MEXICO 
 RESEARCH INITIATIVE REVIEW BOARD; EXECUTIVE DIRECTOR, HARBOR 
 BRANCH OCEANOGRAPHIC INSTITUTE; ASSOCIATE PROVOST FOR MARINE 
   AND ENVIRONMENTAL INITIATIVES, FLORIDA ATLANTIC UNIVERSITY

    Ms. Leinen. Thank you, Mr. Chairman and Members of the 
Subcommittee.
    My name is Margaret Leinen. I am the Vice Chair of the Gulf 
of Mexico Research Initiative Review Board. I am also Associate 
Provost for Marine and Environmental Initiatives at Florida 
Atlantic University and Executive Director of Harbor Branch 
Oceanographic.
    My remarks today were prepared by Dr. Rita Caldwell of the 
Gulf of Mexico Research Initiative and one of your 
constituents, Senator Cardin.
    In May, 2010, BP committed $500 million over a 10-year 
period to create an independent research program to study the 
impacts of the Deepwater Horizon oil spill on the Gulf of 
Mexico. The program, known as the Gulf of Mexico Research 
Initiative, or GRI, is directed by an independent research 
board. The research board is responsible for identifying the 
research priorities, preparing requests for proposals, enabling 
an open and transparent process for review, selecting proposals 
for funding based on that review, and reviewing annual progress 
for continuation of funding.
    Although the GRI was announced in 2010, it was not until 
March 14, 2011 that the master research agreement was signed. 
That agreement between BP and the Gulf of Mexico Alliance 
provides the operational structure for the GRI.
    As stated in that master research agreement, the GRI is an 
independent scientific research program and is separate from 
the natural resources damages assessment process, and BP agrees 
that the participation of the Alliance in this agreement shall 
not result in a credit against or defense to any claims for 
natural resource damages or assessment costs. So we are 
independent of NRDA.
    The objectives of GRI are to study the impacts of the oil, 
dispersed oil, and dispersant on the ecosystems of the Gulf of 
Mexico and affected Gulf States in a very broad context of 
fundamental understanding of the dynamics of these events, the 
associated environmental stresses, and public health 
implications.
    The GRI will also support the development of improved oil 
spill mitigation, oil and gas detection characterization, and 
remediation technologies.
    Ultimately, the goal is to improve society's ability to 
understand and respond to events like this and to understand 
the effects on coastal ecosystems, with an emphasis on Gulf of 
Mexico.
    We have establish and are implementing peer-reviewed 
competitive grant programs to support research that advances 
this understanding in five areas: first, physical distribution, 
dispersion and dilution of petroleum, its constituents and 
associate contaminants such as dispersants under the action of 
physical oceanographic processes, air-sea interaction and 
tropical storms.
    Second, the chemical evolution and biological degradation 
of petroleum dispersant systems and their subsequent 
interaction with coastal, open ocean and deep water ecosystems. 
Third, environmental effects of the petroleum dispersant system 
on the sea floor, water column, coastal waters, beach 
sediments, wetlands, marshes and organisms, the science of 
ecosystem recovery.
    Fourth, technology developments for improved response, 
mitigation, detection, characterization and remediation 
associated with oil spills and gas releases. And fifth, 
fundamental scientific research, integrating results from the 
four other themes in the context of public health.
    The Research Board has released two requests for proposals, 
which we call RFP-1 and RFP-3. We anticipate issuing another 
request for proposal later this year. The first of these, RFP-
1, was announced on April 25th of this year. Through this 
program, a minimum of $37.5 million per year will fund 
approximately four to eight research consortia to study the 
effects of the Deepwater Horizon incident.
    It is anticipated that each grant will be for up to 3 years 
and will range between $1 million and $7.5 million per year. 
The research will be conducted through these consortia and must 
address one or more of the five areas that we have described. 
The proposals are being accepted until the 11th of July and we 
anticipate announcing the results of this competition August 
30th.
    The second RFP will be for funding smaller research teams. 
It will focus on individual investigators with up to three co-
principal investigators; a maximum of $7.5 million per year 
will be available for those grants.
    And earlier this year, the Research Board recognized the 
need to provide short-term or emergency funding to sustain some 
data collection that had already begun over the summer. On June 
7th, we announced the availability of $1.5 million of emergency 
funding, and are conducting an expedited review of proposals 
that we have received. We anticipate announcing the results of 
that competition at the end of this week.
    So the GRI supports research that contributes to our 
understanding of how the Gulf of Mexico was influenced by the 
Deepwater Horizon oil spill and how this rich and dynamic 
environment is recovering. This information will undoubtedly be 
useful and informative to the NRDA program and we expect it to 
provide valuable insight for the long-term analysis of 
ecosystems since it lasts for 10 years.
    Thank you very much for the opportunity.
    [The prepared statement of Ms. Leinen follows:]
    
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    Senator Cardin. Thank you very much, Dr. Leinen.
    Dr. Rifkin.

STATEMENT OF ERIK RIFKIN, INTERIM EXECUTIVE DIRECTOR, NATIONAL 
        AQUARIUM CONSERVATION CENTER, NATIONAL AQUARIUM

    Mr. Rifkin. Good morning, Chairman Cardin, Ranking Member 
Sessions and remaining Members of the Subcommittee. Thank you 
very much for inviting me to testify today.
    On July 27th of 2010, approximately 1 year ago, the 
National Aquarium was invited to testify before this Senate 
Subcommittee on a hearing titled Assessing Natural Resource 
Damages Resulting from the BP Deepwater Horizon Disaster.
    At that time, I emphasized the importance of independent 
research to address concerns related to our ability to 
accurately quantify potential chronic damages to natural 
resources in the Gulf. The rationale for this view was and 
still is based on the concern that the current NRDA process is 
not using a methodological approach which adequately measures 
small quantities of petroleum contaminants which could have 
chronic impacts on aquatic biota. And this is important because 
small amounts of contaminants in the water and in the sediment 
porewater through a process called bioconcentration or 
biomagnification can increase exponentially in aquatic flora 
and fauna.
    More specifically, my testimony and the written testimony 
of the other researchers on the panel at that time suggested 
that devices called passive diffusers can be used to measure 
low levels of petroleum in order to accurately characterize 
ecological risks and impacts.
    Since the last hearing, as Senator Cardin mentioned 
earlier, the National Aquarium Conservation Center, in 
collaboration with the Mote Marine Laboratory and Johns Hopkins 
University, has deployed sophisticated petroleum contaminant 
samples as deployed by the USGS well over a decade ago, using 
semi-permeable membrane devices, the acronym for which is 
SPMDs. These devices function as virtual fish and provide 
unparalleled time-integrated data on low levels of petroleum 
contaminants in the water column and sediment porewater, data 
necessary for assessing potential chronic impacts.
    By using the SPMDs, we were able to level low levels of 
individual PAHs, these are organic pollutants found in 
petroleum, in the water column and in the porewater in areas 
impacted by the BP spill. Our preliminary findings support the 
contention that data obtained by these devices when 
incorporated into bioconcentration models, will provide a far 
more accurate assessment of the nature and extent of chronic 
damages in the Gulf than the standard approach of using grab 
samples for water and sediment.
    Our samples came from impacted areas off the coasts of 
Louisiana, Mississippi, Alabama and Florida. A number of months 
ago, we had an opportunity to meet with representatives from 
the Environmental Protection Agency so that we could share our 
preliminary results with the agency and obtain advice and 
guidance from their research scientists.
    At our meeting and subsequent conference calls, EPA 
scientists support the view that there was value in using these 
passive diffusers to monitor levels of these so-called PAHs. 
Incorporating EPA's technical suggestions, we refined our 
method and once again deployed these devices in Barataria Bay, 
which is in Louisiana, as you all know. The results from this 
recent effort should provide values which can be used to model 
the bioconcentration of contaminants in the food chain, provide 
empirical data which can be used in bio-assays to assess and 
quantify chronic damages, and reduce the level of uncertainty 
when assessing chronic damages from exposure to oil from the BP 
spill.
    The ramifications of our findings should not be 
underestimated. To date, the vast majority of water and 
sediment grab samples obtained for the NRDA have resulted in 
PAH concentrations being reported as ND or non-detect. That is, 
below the analytical detection limit. Non-detect equates to 
zero.
    So the assumption has been made that there are 
insignificant damages to natural resources from the released 
PAHs. However, the PAH values below detection and predetermined 
benchmark values from grab samples doesn't mean that PAHs are 
absent or present at levels which are not harmful.
    The NRDA protocols reports the use of benchmark values as 
the basic determinant for whether concentrations of PAHs and 
other contaminants constitute an ecological risk. However, 
benchmarks are only meant to be used for screening purposes 
only. They are not regulatory standards or criteria. Benchmarks 
cannot be validated for all sites and situations. They can be 
defended only in terms of regulatory precedent.
    And while EPA and other agencies provide broad guidelines 
for the assessment of benchmark end-points, specific end-points 
are not identified. A meaningful NRDA must be able to 
incorporate empirical data in economic models in order to 
accurately assess chronic damages and injury to natural 
resources in the Gulf. This perspective should certainly apply 
here, given the magnitude and scope of this oil spill.
    In light of our preliminary findings, there are reasons to 
give serious consideration to expanding the use of these 
diffusers in impacted areas of the Gulf as soon as possible. 
This will increase our ability to assess causality between the 
release of oil and injured resources and/or lost human use of 
those resources and services.
    I thank you very much for your time.
    [The prepared statement of Mr. Rifkin follows:]
    
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    Senator Cardin. Thank you, Dr. Rifkin.
    Mr. Graves.

   STATEMENT OF GARRET GRAVES, CHAIR, COASTAL PROTECTION AND 
                     RESTORATION AUTHORITY

    Mr. Graves. Thank you, Mr. Chairman, Ranking Member, and 
Senators, I appreciate the opportunity to be here. My name is 
Garret Graves and I serve as the Chair of the Coastal 
Protection and Restoration Authority of Louisiana. It is a 
State agency that was created after Hurricane Katrina to be the 
single State entity charged with coastal sustainability, 
hurricane protection and other coastal resource issues in the 
State of Louisiana.
    Mr. Chairman, I think it is important to provide some 
background for the conditions in coastal Louisiana prior to 
this disaster occurred. Going back about 80 years ago, Federal 
levees put on the lower Mississippi River was the primary cause 
of the loss of approximately 1,900 square miles of coastal 
wetlands, and these are jurisdictional wetlands just like you 
or I would have to get a permit for impacting.
    There has been no mitigation done for that 1,900 square 
miles of loss. In addition, over the last 6 years we have been 
impacted by Hurricanes Katrina, Rita, Gustav and Ike that all 
took an extraordinary toll on our State.
    I tell you that because our coastline is very different 
than the other 35 coastal States and territories in this 
Country. It is a very fragmented coastal area, with a lot of 
nooks and crannies. If you measure the shoreline from 
Mississippi to Texas, you get about 800 miles. But if you 
actually measure the actual tidal shoreline, it is much closer 
to about 8,000 miles. So it is a very, very different coastline 
and trying to protect that area from oil was a very 
extraordinary challenge.
    At the same time, this coastal ecosystem is very, very 
productive. U.S. Fish has called it the most productive 
ecosystem on the continent. Approximately 90 percent of the 
marine species in the Gulf of Mexico are dependent upon that 
estuary in coastal Louisiana for at some point in their life 
for survivability. Ninety-eight percent of the fisheries and 
shellfish that are commercially harvested in the Gulf of 
Mexico, again, are dependent upon coastal Louisiana's wetlands 
and our unique estuary, where 90 percent of the fresh water 
that flows into the Gulf of Mexico comes through our State.
    At the same time, this area is home to 5 million waterfowl, 
25 million songbirds, and is the largest wintering habitat for 
migratory songbirds and waterfowl. So again, a very, very 
productive area. It is home to 70 rare, threatened and 
endangered species, and the coastal wetlands that we have lost 
played an important role not just in terms of ecosystem 
services, but also in terms of keeping a buffer between the 
Gulf of Mexico and our populated communities. We saw the impact 
of that after Hurricane Katrina.
    On the economic side, Mr. Chairman, if you collectively 
look at the five Gulf States, the GDP of those areas, if it 
were compared to a nation, it would comprise the seventh 
largest economy in the world. So much economic activity is 
ongoing there. In coastal Louisiana alone, we have five of the 
top 15 ports and approximately 20 percent of the Nation's 
waterborne commerce comes through our ports and river systems, 
which is hundreds of billions of dollars annually. And at the 
same time, this area produces or transports approximately one-
third of the oil and gas that is consumed in the United States.
    So from an economic side, the Gulf Coast, coastal Louisiana 
is very, very important.
    Though we have had these historic challenges, we have been 
able to make progress in recent years. The State of Louisiana 
has made unprecedented investment in trying to restore our 
coastal wetlands. And as a matter of fact, in recent weeks the 
U.S. Geological Survey released a report indicating that it 
appears that we have created approximately 200 square miles of 
land, while the historical loss rate has been anywhere from 11 
to 16 square miles on average over the last 80 years. We in the 
last 3 years have perhaps created up to 200 square miles. So we 
are making progress.
    This oil spill came in the worst place because of the 
productivity of this ecosystem. And it came at the worst time 
because we were rebounding. We reversed the loss of the trend 
that had been ongoing for decades.
    To give you a few spill statistics, 92 percent of the 
heavily and moderately oiled shorelines were in coastal 
Louisiana. And even today, 100 percent of the heavily, over 99 
percent of the moderately, 81 percent of the light and about 96 
percent of the very light shorelines oiled are still in coastal 
Louisiana today. Over 60 percent of the marine species, the 
birds, the mammals, the fish that were collected, that were 
injured, sick or oiled during this oil spill were collected in 
coastal Louisiana. So incredible impacts on our State.
    I am going to flip over to the response and the NRDA side 
very quickly. BP is to be commended for coming to the table 
with their checkbook. I think it is a very, very important 
thing to keep in mind. They came to the table with mental 
health dollars, with tourism funds, seafood safety and 
marketing funds. And we very much appreciate that.
    But I want to paint the box that we are in today. As you 
very well know better than I do, this Country is facing fiscal 
challenges. Our State is facing fiscal challenges. There is a 
$1 billion cap on the oil spill liability trust fund to fund 
oil spill response activity, including NRDA; a $1 billion cap. 
We are over $900 million in expenses from this disaster so far.
    And so the only source of money for us in this case is BP 
It is the only source of funding to a large degree to fund 
response, to fund NRDA operations.
    Mr. Chairman, I think that equation needs to be flipped 
over. I think that the public should be in the driver's seat. 
By being able to control the checkbook, you can control what is 
in these work plans, how the NRDA assessments are conducted, 
the timeline of the NRDA assessments, perhaps losing access to 
ephemeral data because of the negotiations ongoing with these 
work plans.
    BP at the same time has hired armies of attorneys, of 
marketing firms, of P.R. campaigns, lobbyists, scientists, 
consultants and other experts. And we have to compete with 
that, the States do, the Federal Government does. And as long 
as we are not provided access to the funds that are needed for 
us to truly put up a strong case for the public, it perhaps 
provides a situation where the public's resources, the public's 
trust is not properly represented. And I think that equation 
needs to be entirely flipped over.
    Three other quick points. I think it is important, the 
question, and I know, Senator Sessions, you have an extensive 
legal background, what other situation do you have where the 
defense is allowed to govern or rein in the plaintiffs in terms 
of the activities they carry out through exercising their 
governance of the funding? I don't know of any other scenario.
    The NRDA process does take too long, as has been noted. 
Senator Vitter and Senator Landrieu did file legislation to 
require a down payment. I think that is critical. Our citizens 
have already been victimized. Our economy has been victimized. 
And by allowing for a 10-year, 15-year or 20-year process for 
recovery of that ecosystem and those natural resources is 
unacceptable. And for the statutory confines to allow for that, 
I think that needs to be revisited.
    We need to have accurate science, Senator, Mr. Chairman, we 
need to have accurate science and base our recovery upon that. 
But at the same time, we can't allow these resources to sit in 
a degrades State for decades. It is inexcusable to the public.
    The last point I would like to make is that I know this 
Committee has jurisdiction over the Clean Water Act. I think I 
represent all Gulf States in saying that we strongly support 
the recommendations of the National Oil Spill Commission, 
Secretary Mabus and others that have recommended that those 
funds be returned to the Gulf States for environmental-type 
uses.
    I don't think it is appropriate for the Federal Government 
to profit from the loss that has occurred in the Gulf Coast.
    Thank you.
    [The prepared statement of Mr. Graves follows:]
    
    
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    Senator Cardin. Thank you very much for your testimony.
    Mr. Shattuck.

STATEMENT OF R. COOPER SHATTUCK, CHAIRMAN, EXECUTIVE COMMITTEE, 
    NRDA TRUSTEE COUNCIL, LEGAL ADVISER TO GOVERNOR BENTLEY

    Mr. Shattuck. Thank you, Chairman Cardin, Ranking Member 
Sessions, Members of the Subcommittee. Thank you for the 
opportunity to speak today.
    Thank you, Senator Sessions, for that most gracious 
introduction.
    I won't bore you with the statistics for the significance 
and the size of the oil spill, which we all know too well. 
Suffice it to say it was unprecedented. It has impacted five 
States along the Gulf Coast and the Gulf of Mexico itself, 
which is one of the United States' greatest resources. Impacts 
to the Gulf include commercially important aquatic life; 
endangered or threatened species of turtles, birds and marine 
mammals; habitat use; migration patterns and erosion; and most 
significantly, the loss of use of these resources.
    The Gulf is an essential habitat for countless species of 
fish and shellfish; contains numerous species of marine 
mammals, many of which are protected or endangered; turtles; 
marshes that provide feeding and nesting habitat for offshore, 
near-shore and marsh birds. And the presence of oil in these 
habitats may lead to decreased habitat use in the area, altered 
migration patterns, altered food availability, and disrupted 
life cycles.
    The oil may also cause plants to die, whose roots stabilize 
the soils and thus lead to erosion.
    And this is not to mention the loss of use of these 
resources, which for Alabama, like many of the other States 
along the Gulf Coast, is a significant factor.
    Travel-related expenditures in just one of our counties has 
been reduced by $500 million as a result of the impact of the 
oil spill. Commercial seafood landings, as Senator Sessions 
pointed out, are down 50 percent from 2009.
    The response to the spill from a natural resources 
perspective has also been unprecedented. The NRDA Trustees have 
secured $1 billion from BP for early restoration projects in 
the Gulf. The fact that the Trustees and the responsible party 
have even attempted to address early restoration of this 
magnitude is extraordinary.
    The sum secured for early restoration alone is larger than 
the entire NRDA restoration process for the Exxon Valdez spill. 
Under the framework for early restoration, each Trustee, the 
five States and the Department of Interior and NOAA will select 
and implement $100 million in projects, with the remaining $300 
million used for projects selected by NOAA and the Department 
of Interior from proposals submitted by the State Trustees.
    This agreement would not have been possible without the 
combined and concerted efforts of all of the Trustees working 
together. With so many resources and agencies involved in this 
daunting, but incredibly important task, it is essential to 
ensure continuing cooperation and coordination to guarantee 
that restoration of our natural resources is carried out to the 
benefit of all, both from an early restoration perspective and 
for the long-term benefit of the Gulf as a whole.
    In order to manage these early restoration processes and 
continue the assessment that has been ongoing for some time, 
the Trustee Council has formed an Executive Committee. The 
committee is made up of representatives from each of the 
Trustees. We have also created subcommittees dedicated to 
specific tasks as part of our charge, each of which is chaired 
by a representative of the trustees.
    The executive committees themselves work together to make 
sure that each Trustee is represented in an equal and balanced 
manner, to ensure that the priorities and goals of all Trustees 
are achieved.
    The resource assessment process and early restoration 
project selection present many challenges, given the magnitude 
of this disaster, its widespread impact, and the number of 
parties involved. Each State was impacted differently and all 
may have unique priorities for the needed restoration, as may 
each Federal agency.
    Even within a State or agency, there will be different 
approaches and ideas about how to meet these needs and achieve 
these goals. After all, restoration on this scale has never 
been done before. All of the different perspectives and ideas 
have the potential to lead to many disagreements over how best 
to assess the damages sustained and how best to spend the funds 
to restore our natural resources.
    Such disagreements could easily manifest themselves between 
the States, between the States and the Federal Government, and 
between the different Federal agencies, or between Democrats 
and Republicans. However, we must be reminded that the natural 
resources do not share our notions of boundaries and borders. A 
fish does not realize when it crosses from the waters of 
Mississippi into Alabama, or from State waters to Federal 
waters.
    Wetlands do not begin an end indiscriminately at State 
borders, but instead cross them. An oyster does not know 
whether it sits in the waters of a red State or a blue State.
    Just as it was necessary for us to frame our initial 
discussions in fairness for the common good of all, we will be 
challenged to eliminate disputes based on our boundaries and 
maintain our focus on the ultimate goal of restoring the Gulf 
of Mexico's natural resources and hold the responsible party 
responsible.
    But we have created and experienced the precedent that will 
allow us to accomplish just that. From the beginning of this 
disaster, it was essential that the States and Federal 
Government work together through the response and cleanup 
process and we did. And as we began the monumental task of 
assessing the extend of the injuries to our natural resources, 
the need for cooperation became pronounced, and we have done 
just that.
    Obtaining $1 billion for early restoration projects set new 
standards for our ability to tackle obstacles and succeed by 
uniting for a common good. The cooperation between the five 
States is unprecedented, and the cooperation between the States 
and the Federal agencies has likewise been unprecedented, and 
the need continues.
    We simply must remain united against the responsible party 
to see that the damages caused by this disaster are indeed 
corrected and restored.
    The communication and cooperation has and will continue as 
we select early restoration projects. Though the full extent of 
the damages to the resources is not yet known, all agree that 
there must be a nexus between the oil spill, the injury and the 
projected benefits of the project. Cooperation is not only 
necessary for the selection of the projects, but the 
implementation of them as well.
    I would like to report that the process is going well. We 
have challenged ourselves to some fairly demanding timelines. 
Our plan is to select an initial set of early restoration 
projects in July of this year. Even as early restoration 
projects are selected, negotiated and implemented, the NRDA 
process will continue in order to determine the full extent of 
the damage to our resources and our long-term restoration 
plans.
    Thus far, the NRDA process must be measured as a tremendous 
success. We have secured an historic sum of money within a year 
of the tragedy which created this assessment, and the 
monumental task continues as to what will undoubtedly result in 
the most widespread and thorough analysis of a significantly 
large ecosystem as has ever been attempted.
    All of this is unprecedented. We rest assured that if the 
successes of this process are to continue, such cooperation 
that we have experienced between the States, the Federal 
Government and all of the agencies affected will not be a 
luxury, but will be a necessity.
    I am confident that it will continue, and everything that 
has made this process unprecedented will create a precedent by 
which future cooperative efforts will be possible.
    Thank you.
    [The prepared statement of Mr. Shattuck follows:]
    
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    Senator Whitehouse.
    [Presiding] Thank you, Mr. Shattuck.
    Since I will be chairing the remainder of the hearing and 
will therefore by definition be here until the end, I will not 
insist that my distinguished Ranking Member wait through my 
questioning, but I will yield to him so that he may proceed.
    Senator Sessions. Thank you, Mr. Chairman. We have done 
this before on the Judiciary Subcommittee that you and I 
participated in as Ranking and Chair.
    Mr. Shattuck, thank you for your comments. I am pleased to 
see the emphasis on collaboration and cooperation and openness 
in the process. The only flip side of that coin a bit is 
somebody in charge and can we make sure it happens on time? But 
you have already selected projects that would commence before 
the year is out. Is that correct?
    Mr. Shattuck. We are in the process of selecting projects. 
We hope to have the selected by the end of July, to be 
implemented before the end of this year. Yes.
    Senator Sessions. And of the 80 trustees, do they vote 
individually? Is that how decisions are made on these projects?
    Mr. Shattuck. Yes, sir. Each Trustee, and there are seven, 
one from each State, one from NOAA and one from the Department 
of Interior. Each have a vote on selecting a project. Projects 
are selected by a majority vote and then we will move forward 
with the process of negotiating with BP the offsets for those 
projects.
    Senator Sessions. Back to a fundamental question on the 
NRDA process. To what extent do you consider it, and the 
trustees, to what extent do you consider that the process to 
make the region entirely whole? Or is it just a part of it?
    Mr. Shattuck. It is just a part, unfortunately. It 
addresses only the damages to natural resources, and that is 
its limit. And unfortunately, the damages that Alabama has 
sustained, for example, are much greater than that. Though many 
of the damages we have sustained are tied to the loss of our 
natural resources and the loss of use of our natural resources, 
the NRDA process doesn't address those economic losses for 
individuals, businesses or the State itself.
    Senator Sessions. Well, I know Governor Mabus was very 
clear on that in his report, which is really dealing, I 
suppose, more with the Oil Spill Act damages that eventually 
have to be paid by BP under the Oil Spill Act. But he noted 
this section outlined a proposal for Congress to create a new 
Gulf Coast Recovery Council that would be funded in part by 
civil penalties collected under the Act and which would work to 
facilitate environmental restoration and economic recovery and 
attend to the health issues arising from the spill.
    Is that what you understand that will be the next project 
or another project that could be going on contemporaneously 
with this project?
    Mr. Shattuck. Yes, sir. And we hope that Congress will 
consider giving the States, as Mr. Graves pointed out, 80 
percent of the Clean Water Act funds that might ultimately be 
assessed to address all of those losses, whether they are 
environmental or economic.
    Senator Sessions. And whereas there has been some language 
in the legislation I have seen that proposed giving States a 
certain proportion by State, most of the money as I have seen 
in the legislation will be based on an overall need process. Is 
that what most of the legislation says?
    Mr. Shattuck. That is what I understand.
    Senator Sessions. I would just comment on a number of 
things. I felt very strongly that this accident should not have 
happened. And I think the reports are showing that. I feel very 
strongly that the responsible party, the one that by law signs, 
no matter whether subcontractors are liable or not, they are 
responsible for all of the damages, and that is BP And they are 
responsible to their last dollar of their corporate existence, 
as far as I am concerned.
    I think they have moved forward and in some ways been very 
helpful in this $1 billion. I think they were not legally 
required to produce it this soon. Is that correct?
    Mr. Shattuck. That is correct.
    Senator Sessions. I thought that was a positive step on 
their behalf of sustained and unprecedented damage and the size 
of the spill. And I would note that I am very unhappy that 
there was not the kind of capping mechanism already constructed 
that you would have thought the oil company would have had to 
shut this thing off shortly after it happened.
    Now, Mr. Reilly on the part of the commission, and Mr. 
Rifkin, was that the commission you served on with Mr. Reilly? 
You did?
    Well, he testified here a month or so ago that there now 
has been designed a cap that could be put over any blowout like 
this that would in a matter of days be able to capture that. Is 
that your understanding?
    Mr. Boesch. Senator Sessions, that is correct. There are 
two industry groups that have developed that capacity. And if 
you remember the controversies over the permits reassuming the 
deep water drilling, a large part of the demonstration to meet 
these new requirements was to demonstrate that they had this 
deep water containment capability.
    So after those two groups developed that they had the 
capacity satisfactory to the assessment of the Department of 
the Interior, it was at that point that they granted the permit 
to resume deep water drilling.
    Senator Sessions. Well, Mr. Graham Reilly, former head of 
EPA, did testify. He thought that had the capacity to be done 
in a matter of days. So we went 90 some odd days. How many 
days? Almost 90 days of pouring oil that really was a thing 
that is most concerning about it.
    So, Mr. Chairman, I do think that we have learned a 
tremendous amount from this process. The United States has 
benefited dramatically from the production of oil and gas from 
the Gulf. It needs that oil and gas for our economy, jobs and 
growth. I hope that we will be able to continue it. We have 
learned how to remediate and I think we have learned how to 
stop an accident if it ever were to happen again, and frankly 
should not have happened the first time. But I do believe we 
have a capability now to shut it off.
    So hopefully, the Gulf Coast area is ready to go forward in 
the future. We want to fix our economic problems that have been 
severe. And we also want to use this as an opportunity for, as 
I know you share, an assessment, a baseline and future 
projection for a more productive and environmentally positive 
environment on our coast.
    Thank you for participating and allowing me to participate 
in this hearing.
    Senator Whitehouse. Thank you, Senator Sessions.
    I think we learned a lot from this incident about the 
status of our baseline research along our coasts and oceans. 
Senator Vitter was very eloquent a little while ago on how far 
behind we are on the stock assessments and how dated most of 
those are in areas in which coastal flooding and weather events 
and increasing ocean levels and all of that are affecting what 
can happen along the shores, and the development capacity of 
the shoreline and what needs to be protected and buttressed. 
And we seem to be way behind on LIDAR studies. Our physical 
oceanography, we seem to have a far from robust baseline in 
terms of our currents and temperatures.
    If we are going to address the issues that we face in our 
oceans and along our coasts, how much do we need to improve our 
baseline research capability, our awareness of what is going on 
out there, and what are the best methods to do it?
    And I will go right across the table. This is not a Gulf-
specific question. This is a generic question.
    Dr. Boesch.
    Mr. Boesch. Yes, Senator, I couldn't agree with you more. 
We need to have better information about our national ocean to 
make prudent decisions about it. Since the commission did focus 
on the Gulf, let me make just a few comments.
    First of all, we were shocked to see that as the industry 
moved into deep water over really only the last 20 years, the 
really spectacular new technology, there was not the investment 
by our government in understanding that environment. So at the 
time this was taking place, the investment in studies of that 
Gulf of Mexico environment were actually declining.
    To redress that, we recommend that not only for oil and gas 
development, but for all kinds of energy development around our 
coasts whether it is oil and gas in the Alaskan Arctic or wind 
power in the Mid-Atlantic, we should have a better capacity, 
since we were just talking about energy issues, to understand 
the environment.
    So our recommendation is that there should be a really 
modest fee, if you will, recognizing the Federal deficit 
problem, there should be a modest fee to the industry much like 
a State would have a severance tax, that would pay for the 
appropriate regulation and the appropriate studies to support 
that going forward, so that you would have a predictable 
support base to sustain those studies.
    One final thing, as you know, Senator Whitehouse, since you 
have been a champion of this, there is this great interest and 
move around our Country to create ocean observing systems, 
where we can continuously, using modern technologies, monitor 
the State of the ocean. If any part of our national ocean needs 
an integrated ocean observing system, it is the Gulf of Mexico, 
with the great economic engine that it is in oil and gas 
production, shipping, fisheries, all of the conflicting uses. 
And again, we have the resources with that industry and we have 
the infrastructure, all of the platforms that exist out in the 
Gulf of Mexico, to have a first-rate, innovative observing 
system that will help us make decisions going forward.
    Senator Whitehouse. Thank you, Doctor.
    Dean Leinen, again, with respect to the adequacy of our 
current research baseline on oceans and coasts and what you 
would recommend to improve it.
    Ms. Leinen. Well, I think that Dr. Boesch has spoken 
eloquently about the Gulf. I will branch out a little further 
from there. That lack of ability to understand not only the 
conditions as they stand today, but also the processes that 
evolve over decades, is a real hindrance to our ability to make 
good decisions, whether it is the decline of the winter 
flounder in Rhode Island or whether it is the increase in 
diseases that humans get that we see in the wild dolphin in 
Florida.
    We have very little ability to go back and understand what 
the causes of those features are.
    When you compare this to weather, we understand how much 
changing weather influences the economy. But I think that we 
haven't realized how much that lack of knowledge and lack of 
predictability about the oceans affects our competitiveness, 
our ability to use resources wisely, and our ability to prepare 
for the changes that we will see in the future.
    So it is a need for baselines. It is a need for 
understanding evolving processes as well.
    Senator Whitehouse. I will followup on these questions with 
the remaining witnesses, but my questioning time at this point 
has expired and our Chairman has returned. So I will yield to 
the Chairman and then perhaps the Chairman will give us another 
round afterwards so that we can continue this line of inquiry.
    Senator Cardin.
    [Presiding] Let me thank Senator Whitehouse. I apologize 
for having to leave. We have the Jim Cole nomination on the 
floor for Deputy Attorney General, as I know Senator Sessions 
is aware and Senator Whitehouse, both from the Judiciary 
Committee. So I added to that debate a little bit on the floor.
    I want to continue on this baseline issue, but I would like 
to get the views of Mr. Graves and Mr. Shattuck as to whether 
you believe there are adequate resources available to you as 
Trustees to get the type of independent technical support to 
make the type of assessments that we have confidence are the 
best that we possibly can.
    The baseline is a very difficult challenge. No one denies 
that. But having the resources available to get the independent 
type of verification review and technical assistance, to me, 
would be very important. Do you believe the Trustees have 
adequate resources here?
    Mr. Shattuck. Well, there are never enough resources, to be 
honest, but I don't think that we have been impacted or that 
the process has suffered in a detrimental way at this point 
from a lack of resources. And I think part of that is the 
economic incentive that BP has to see that this process is 
funded, which sounds counterintuitive, but I think BP wisely 
has determined that if they do not fund it at this point, then 
they are going to pay for it in the long run and it is going to 
cost even more.
    So as long as we have that economic incentive for them, we 
both benefit from it, in a way, because the studies are done. 
But who knows? We aren't finished yet and it could be at some 
point we are hampered by lack of resources if BP decides to cut 
them off.
    And our State, Alabama, is strapped financially. We are in 
dire financial straits and we don't have the capacity to 
sponsor studies of the Gulf of Mexico or even to the resources 
that we have on our own. It is simply not there.
    Mr. Graves. Mr. Chairman, I would say that I think there 
are resource issues. And just to lay out, under the current 
statutory confines for how this would work, if we wanted to try 
and assess the impact on red fish in the Gulf of Mexico, we 
have to develop a work plan for how that assessment would be 
conducted. And we have to go present that to BP, and then there 
is a negotiation process.
    I am going to embellish this just to give you an idea of 
what we have to go through. But during that negotiation, they 
can say, well, we don't really like the area where you have 
chosen to do this assessment. We think you ought to go to West 
Texas. And we say, well, wait a minute. There wasn't oil in 
West Texas. They say, well, if you want the money, then you 
need to do it in West Texas.
    And so you are in a very difficult situation because of the 
box I tried to describe earlier where, as Mr. Shattuck 
indicated, the States have fiscal challenges. The Federal 
Government does. There is a $1 billion cap on the oil spill 
liability trust fund that we are very close to hitting.
    And so BP is, to a large degree, the only funding source 
there. And if you want access to those dollars, you have to 
have a negotiation and they have to agree to fund it.
    Senator Cardin. That seems to be the problem.
    Dr. Boesch, it seems to me that your recommendations really 
deal with that by suggesting there needs to be independent, 
scientific auditor available to verify that in fact we are 
using independent judgment here.
    Elaborate a little bit more on that and whether you think 
we are implementing that recommendation?
    Mr. Boesch. I think having such audit independent 
assessment is valuable for a number of reasons. First of all, 
for the public confidence that the right thing is being done 
all the way around. Second, as we begin the restoration 
efforts, there is going to be a requirement to make sure, as 
Mr. Shattuck indicated, that this nexus between the damage and 
the restoration, to the degree possible, is there.
    And having that independently evaluated I think is 
important because imagine, as he indicated, there are five 
States, each with their own independent, their unique problems 
and approaches to restoration, which is fine. But at the end of 
the day, they all have to meet that same standard.
    So absent that, it becomes a problem as we want to court, 
to adjudication of this, not only between the Trustees and the 
responsible party, but by third parties who might 
hypothetically come in and say, well, the money that BP gave 
you really wasn't used to redress this damage; you used it for 
some other way, so it shouldn't be counted against the amount 
that BP is responsible for.
    For all those reasons, and I think the most important 
reason is to make sure that what we do with restoration is as 
effective as we can be. That independent evaluation I think is 
important.
    And you ask the question to the agencies, and they do have 
lots of technical experts, but of course the technical experts 
work for the people within the agencies. So having someone who 
is independent, having a group that is independent of that I 
think adds real value and accountability to the process.
    Senator Cardin. I would just observe this is a similar 
issue that came up at our first hearing, whether we would have 
the capacity. I just think the process itself has an inherent 
conflict because of the funding source and the desire, quite 
frankly, to have a cooperative relationship with the 
responsible party. That makes sense. If you can do it, save 
time and save uncertainty and gets things moving. But on the 
other hand, you need to have the independence to move in the 
directions you think you need to.
    And Mr. Graves, you raise a very important concern as to 
the selection of the site is critical to the assessment.
    So I am not sure we have quite gotten there yet. I think 
there is a real commitment on behalf of the trustees to get 
independent scientific information, but the funding sources and 
the process itself is challenging. And if you don't have 
adequate baseline information, it is hard to make an accurate 
assessment.
    And there, I think Dr. Rifkin, you have really come in and 
provided some real substantial help on the technology, and I am 
glad to see EPA is at least using the information that you made 
available. I hope it will be successful, that we will be able 
to get a more accurate assessment of the current damage.
    Have you had any further indications from EPA?
    Mr. Rifkind. First of all, I would like to say that the 
methodology that we are using was developed by the USGS way 
over a decade ago and has been used by Federal agencies for 
many years. So this isn't just something a few scientists came 
up with recently. It is, however, not being used in the Gulf as 
part of the NRDA process, which is a shame. EPA has 
acknowledged the value in using these devices.
    But since everyone was talking about funding, it is 
difficult to obtain that funding either from EPA or from NOAA 
or from other organizations. So we are in a position now where 
we are going to have limited data, which is going to be more 
sophisticated and significant; more sophisticated than what is 
currently being used in the NRDA process and very significant 
in attempting to quantify chronic damages in the Gulf.
    But again, we are very limited in what we can do because of 
the lack of funding.
    Senator Cardin. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. I appreciate 
this opportunity, and I don't think I have another round of 
questions.
    I believe it is an excellent panel. It is indeed an 
excellent panel. We are beginning to have a congressional 
response to the damage that the Gulf has sustained. We will 
work our way through that hopefully sooner, rather than later.
    And I thank you for your leadership.
    And Senator Boxer, our Chairman of the full Committee, has 
also given a good bit of her time and attention to this, and 
her leadership can help us lead to a successful conclusion.
    Senator Cardin. Thank you. I concur completely with our 
leadership of this Committee. I think that it has focused from 
the beginning on trying to get the right thing done and to move 
it as quickly and as completely as we can.
    Senator Boxer has been very encouraging to this 
Subcommittee Chair to move forward on these issues.
    Senator Whitehouse.
    Senator Whitehouse. I just wanted to give the remaining 
witnesses a chance to answer my earlier question, which had to 
do with what I perceive to be the inadequacy of the baseline 
research, and if you agree that is a problem, what can we be 
doing nationally to improve it. Again, not just specific to the 
Gulf, but including the Gulf.
    Mr. Rifkind. Well, first and foremost, I think the question 
is spot on, and it is a very difficult, complicated issue. 
Baseline for an impacted area such as Sarasota Bay is different 
than the baseline you will find currently along parts of the 
coast of Louisiana and Alabama because of previous spills.
    And from my point of view, in order to get an adequate 
baseline, which is critical, the right information needs to be 
obtained periodically and monitored periodically, so that when 
a spill occurs, the baseline is there. It is too late after a 
spill.
    And today, that is what we are always doing. We are always 
trying to find a baseline someplace where the spill hasn't 
existed, which in fact is not scientifically useful because 
that is not the area that we are going to be looking at.
    So I think the agencies responsible for collecting data 
such as NOAA and EPA and Fish and Wildlife Service and other 
Federal agencies need to continually look and monitor, or look 
to and monitor certain water bodies such as the Gulf so if 
there is another disaster, that baseline will be available 
before and not concerns about it after the spill itself.
    Senator Whitehouse. Mr. Graves.
    Mr. Graves. Thank you, Senator. I often pretend to be 
expert in various fields of my job, but I certainly know the 
limits of my expertise. If I were to ask that question, I think 
one of the first things I would do is probably e-mail Dr. 
Boesch and ask him his thoughts. So I would largely defer to 
him, in addition to our internal folks. And if it is OK with 
you, I would prefer to respond in writing.
    Senator Whitehouse. Mr. Shattuck.
    Mr Shattuck. Sure. I am not scientist either, but I think 
there is a fine line. Disasters like this give us 20/20 
hindsight vision, and it would have been great to have a better 
baseline, but we have to work with what we have. And what we 
learned from that is that it would be great to have a more 
extensive baseline study throughout the Country just in case 
something like this happens again.
    But again, I know that you all are battling limited 
resources, as are we, and there is a fine line and balance of 
how much can we afford to do, versus addressing more immediate 
plans. And that is a risky endeavor, but it is one that 
economics might force upon us.
    Senator Whitehouse. And clearly a good deal of this 
research is done at the State level and through States, through 
what in Rhode Island is called the Coastal Resources Management 
Council, for instance.
    And as States find their budgets slaughtered, it is hard to 
imagine that this will improve. And the Federal funding 
environment is one that is looking at cuts. And so I think it 
is important that we try to find new and lasting sources of 
funding so that we are not as ill-informed about the actual 
status of our oceans and coasts as we are right now. In many 
respects, we are flying blind in certain areas.
    And so I appreciate the testimony of all the witnesses.
    The only other point I would like to raise briefly, it 
hasn't come up yet and I don't know if it is a problem. There 
is a concern that when you get to a major incident like this 
and you have a responsible party that is pretty evident, and 
there is a lot of money at stake, one of the first things that 
they do is go in and buy up all the science; put as many 
scientists as they can under contract with whatever it takes to 
get them. And then they can dole out which ones they want, and 
the other ones they just have bought their silence, more or 
less.
    Have you seen that as a problem? And is that something we 
need to attend to?
    I guess I will go to Mr. Graves for that.
    Mr. Graves. Senator, it absolutely is an issue. Everything 
from the attorneys we were interviewing back in May to some of 
the consultants, scientists and other experts. Many of them 
were conflicted out either by pre-spill contracts or there 
certainly was a big rush by the responsible parties to pick 
those folks up. It absolutely has been an issue.
    Thankfully, one of the major areas of science where we 
needed assistance we were able to work our an agreement with 
the Federal Government to share a consultant there, but I think 
it is an issue.
    Senator Cardin. Again, let me thank all of you for your 
testimony and for your work in this area. This is a continuing 
interest to this Committee and its oversight responsibility.
    Obviously, we have to get this right. The stakes are very, 
very high for all of us. It affects our entire Country, not 
just the directly impacted regions.
    So we have got to get this right. We need to learn from how 
we handled previous environmental damage areas and we need to 
make sure that we can justify the process at the end of the day 
as being in the best interests.
    One of the encouraging signs, let me just point out that it 
seemed, and it was a point that you raised, Dr. Boesch, dealt 
with the long-term issues. It looks like that as this is moving 
forward, there is sensitivity that the final assessment include 
monitoring to make sure that we carry out the intended 
restoration that we thought.
    It looks like we have made progress since our first hearing 
on that issue because that was raised immediately that there 
would be damage for a long time to come that may not be quite 
as well defined by the time agreements are reached. It seems 
like there is sensitivity among the Trustees to make sure that 
is included in the long-term solution.
    So let me again compliment all of you for your work and we 
will look forward to continuing to work with you.
    With that, the Subcommittee will stand adjourned.
    [Whereupon, at 12 p.m., the subcommittee was adjourned.]
    [Additional material submitted for the record follows.]

            Statement of Hon. James M. Inhofe, U.S. Senator 
                       from the State of Oklahoma

    Thank you, Senator Cardin, for conducting today's 
subcommittee hearing to discuss the difficult and extensive 
process of determining natural resource damages stemming from 
BP's Deepwater Horizon disaster. As the Committee of 
Jurisdiction, one of our fundamental roles is to provide 
oversight of the Natural Resource Damage Assessment (NRDA) 
process. I look forward to getting an update on the assessment 
and a thoughtful discussion on some of those issues today.
    Today our committee welcomes two panels of witnesses, 
Federal and non-Federal, that have diverse and unique 
experiences to share. I'm particularly happy to have witnesses 
from the Gulf Coast such as Cooper Shattuck, Chairman of the 
Executive Committee of the NRDA Trustee Council, and Garrett 
Graves, Chair of the Coastal Protection and Restoration 
Authority, State of Louisiana.
    As many of you may know, my initial reaction to the 
Administration's response was critical, as noted in my report 
entitled, ``Failure of Leadership: President Obama and the 
Flawed Federal Response to the BP Disaster''. Perhaps time will 
tell us that the greatest threat to the Gulf came from the 
Obama administration's regulatory overreach on offshore 
drilling.
    While we still do not know the full extent of the effects 
from BP's Deepwater Horizon spill, we owe it to the Gulf region 
and the American people to carefully examine the effectiveness 
of the Federal response. I hope that this hearing today will be 
a positive step in that direction.

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